
2fe 



OPENING ARGUMENT 



MR. BUTLER, OF MASSACHUSETTS, 



ONE OF THE MANAGERS 



IMPEACHMENT OF THE PRESIDENT. 



WASHINGTON: 
G n V E niiUKXT printing or. 
18 6 8. 





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OPENING ARGUMENT 



MR. BUTLER, OF MASSACHUSETTS. 



ONE OF THE MANAGERS 



IMPEACHMENT OF THE PRESIDENT. 



WASHINGTON: 

GOVERNMENT PRJNTING OFFICE, 
186 8. 



315J4 

. ,3 









OPENING ARGUMENT 



()K 



m BUTLEB OF MASSACHUSETTS, ONE OF THE MAttAGEBS ON THE EMPEACB 
MENT OF THE PRESIDENT. 



Mr. President and Gentlemen of the. Senate: 

The onerous duty has fallen to my fortune to pr tly as 

I must, the several propositions of fact and law upon which the House ai 
Representatives will endeavor to sustain the cause of the peopl 
President of the United S >w pendiug at your bar. 

The high station of the accused, the novelty of the p 
the business, the importance of the questions to be pi lica- 

tion, the possible momentous result of the issues, each and all mi I for 

me to claim your attention for as long a time aa your patience may endure. 

Now, for the first time in the ; the world, has a nation brought 

before its highest tribunal its chief executive magistrate for trial and possible 
deposition .from office, upon charges of maladministration of the powers and , 
duties of that office. In other times, and in other lands, i: 1 mnd that 

despotisms could only be tempered by assassination, and nations living under 
constitutional governments even, have found no mode by which to rid themselves 
of a tyrannical, imbecile, or faithless ruler, save by overturning the very foun- 
dation" and frame-work of the government itself. And, but recently, in one of 
the most civilized and powerful governments of the world, from which our own 
itutions have been largely modeled, we have seen a nation submit for years 
to the rule of an insane king, because its constitution contained no method for 
his removal. 

Our fathers, more wisely, founding our go 1 , , have provided foi 
and all similar exigenci lervative, effectual, and practical remedy by the 

constitutional provision that the " Pre-ident, -Vice-President, and all civil officers 
of the United States shall be removed from office on impeachment for and con- 
viction of treason, bribery, or other high crimes and misdemeanors." The : 
Btitution leaves nothing to implication, either as to the persons upon whom, or the 
body by whom, or the tribunal before which, or the offences for which, or the 
manner in which this high power should be exercised ; each and all are provided 
for by express words of imperative command. 

Tie' House of Representatives shall solely impeach; the Senate only shall 
try ; and in case of conviction the judgment shall alone be removal from office 
and disqualification for office, one or both. These mandatory provisions 
became necessary to adapt a well known procedure of the mother country to 
the institutions of the then infant republic. But a single incident only of the 
business was left to construction, and that concerns the offences or incapaci! 
which are the groundwork of impeachment. This was wisely done, bee: 
human foresight is inadequate, and human intelligence fails in the I :tici- 

pating and providing for, by positive enactment, all the infinite gradations of 
human wrong and Bin, by which the liberties of a people and the safety of 
a nation may be endangered from the imbecility, corruption and unhallowed 
ambition of its rulers. 

It may not be uuiustructive to observe that the framers of the Constitution, 
while engaged in their glorious and, I trust, eyer-euduring work, had their atten- 
tion aroused and their minds quickened most signally upon this very topic. ^ In 
the previous year only Mr. Burke, from his place in the House of Commousin Eng- 



impeachment a n Hastings, and 

• impeached at the bar of the 11 
ruler of a people whose munhei 
■ 1 by millions. The mails were then bringii the Atlantic, week by 

week, the eloqu and burning denunciations 

.. in behalf i f the Oppi p ople of India, against one who bad 

. fcfaj baA e 1" en, that the trial I i 

in pi determini . the ( 'onstitul 

the descriptiol I which the conduct of an officer might 

inquii 1 by the I Parliament as found in the 

were as familial 
arc v. .'.ii .' 

In the light, th' . ill. -si- pi the question arises, What ■ 

under the provisions of our Constituti 

mcile ilr . is a work rather I 

the ciosi I than the forum. In on ition, 1 li 

rred to Btate the result to which 1 have arrived, and that you may 
autboi . both in this country and in England, from which 

we d i proposil I ir as applicable to this case, 1 ; . to 

lay 1 of my argument, a brief of all the prei 

authorities upon this Bubject, in both countries, for which 1 am indebted to 
exhaustive and learned labors of my friend, the honorable William Lawrem 
of Ohio, member of the Judiciary Committee of the House of RepresentatH 
in which 1 fully concur and which i I 

We define, therefore, an impeachable high crime or misdemeanor to b< ■ ■ 

ature or a u fundamental or essential principle 

vernmeni, or highly prejudicial to the public interest, and this may consist 

of (i violation of the Constitution, of law, of an official oath, or of duty, by an 

or omitted, or, without violating a positive law, by the abuse 

of discretionary powers from improper motives, or for any improper put •_] 

first criticism which will Btrike the mind ou a cursory examination of this 
aition is, that some of the enumerated acts are not within the common-law 
definition i I crimi It is but common learning that in the English precedei 
the words •• high crimes and misdemeanors " are universally used ; but any mul- 
ation in office, highly prejudicial to the public interest, or subversive of some 
fundamental principle of government by which the safety of a people may be 
inger, i a high crime against the nation, as the term is used in parliamen- 
tary law. 

Hallam, in hist utional 1 1 istoryof England, certainly deduces this docti ine 

from the precedent lly herd Danby case, 11 State Trials, 600, of 

which 

1 :. ; 1:1 lanbVj w< nt .-. tabliahing the 

.ii shelter bimscll behind the throne by pleading obedience to 

able for the justice, tfu honesty, tht utility <</ all meets- 
emanating from the Crown, as well as ality, and thus the executive ad min- 

or ought in !,.•, subordinate in all great matters of policy to the Buperinti 
and ■ • i.t. 

Mr. < bri Mm, in bie notes t" the Commentaries oi Blackstone, explains th" 
collocation and use of the words "high crimes and tnisdemeanors" by saying: 

Wl.cn ii • an. I in';-. I. ; m prosecutions 1>V impeach- 

" high crin cation, bu inerelj to j ■ 

A like interpretation n been given by the framers of the Constitution, 

a like d< finition to ours waa in the mind of Mr. Madison, to whom more 

ther we are indebted for the phra eology of our •Constitution, for, 

in tt ' power to remove an officer by the 



/ 



President! which is one of the very material quei tii as before the Senate at this 
moment, he uses the following words: 

The danger consists mainly in this: thai ■-■ a man 

whose merits require he should be continued in it. In the first place, he will be impeach 
by the House for such an acl or maladministration, foi I contend that the wanton 
removal of meritorious officers would Bubjoi i him to impea ihment and removal from hi • own 
trust. 

Strengthening this view, we find that within t si years afterwards impeach- 
ment was applied by the very men who framed the Constitution to the acts of 
public officers, which under no common-law definition cduld be justly called 
crimes or misdemeanors, either high or low. Leaving, however, the correctness 
i f our proposition to be sustained by the authorities we furnish, we are nat- 
urally brought to the consideration of the method of the procedure, and the 
nature of the proceedings in cases of impeachment, and the character and powers 
of the tribunal by' which high crime.- and misdemeanors are to be adjudged or 
determined. 

One of the important questions which meets us at the outsel is: Is this pro- 
ceeding a trial, as that tennis understood, so far as relate- to the rights and 
duties of a court and jury upon an indictment for crime? Is it, not rather more 
in the nature of an inquest of office? 

The Constitution seems to have determined it to be the latter, because, under 
its provisions the right to retain and hold office is the only subject that can be 
finally adjudicated ; all preliminary inquiry being carried on solely to determine 
that question and that alone. 

All investigations of fact are in some sense trials, but not in the sense in which 
the word is used by courts. 

Again, as a correlative question : 

Is this body, now sitting to determine the accusation of the House of B 
.- utatives against the President of the. United States, the Senate of the United 
States, or a Court ? 

I trust, Mr. President and Senators, I may be pardoned for making some 
suggestions upon these topics, because to us it seems these are questions not of 
as, but of substance. If this body here is a Cuurt in any manner as contra- 
distinguished from the Senate, then we agree that many if not all the analogies 
of the procedures of courts must obtain; that the common-law incidents of a 
trial in court must have place; that you may be bound in your proceedings and 
adjudication by the rules and precedents of the common or statute law ; that 
the interest, bias, or preconceived opinions or affinities to the party, of the judges, 
may be open to inquiry, and even the rules of order and precedents in courts 
should have effect ; that the managers of the House of Representatives must 
conform to those rules as they would he applicable to public or private prosecu- 
tors of crime in courts, and that the accused may claim the benefit of the rule in 
criminal cases, that he may only be convicted when the evidence makes the fact 
clear beyond reasonable doubt, instead of by a preponderance of the evidence 

We claim and respectfully insist that this Tribunal has none of the attributes 
of a judicial Court as they are commonly received and understood. Ofcour.-e, 
this question must be largely determined by the express provisions of the Con- 
stitution, and in it there is no word, as is well known to you, Senators, which 
gives the slightest coloring' to the idea that this is a Court, save that in the trial 
of this particular respondent the Chief Justice of the Supreme Court must pre- 
side. Put even this provision can have no determining effect upon the question, 
because, is not this the same Tribunal in all its powers, incidents, and duties, 
when other civil officers are brought to its bar for trial, when the Vice-President 
(uot a judicial officer) must preside? Can it be contended for a moment that 
this is the Senate of the United States when sitting on the trial of all other 
officers, and a Court ouly when the President is at the bar ? solely becaus i;: 



6 

ding 

this purpi . ition does 

II . od ili.it that was but a 

of the British 
of Englan i sit in like cast 

upon bonor, when a 

ping ;iw;i\ 

mn proceeding lik': 
. and 
oor. 

•in- ■■(• of the 
anal". the House of Lords. 

:ivc and illusory. Before such analogy 
. . ii Parliament at first, and latl 
Lords, claimed and exercised jurisdiction over all crim 

. | limb. By express provision of our 
II such jurisdiction ia taken from th< S tate and " the judicial 

. ■ a i- inferior 

in and establish." 

• the Senate of the I Inited 

tribunal, to inquire into and determine 

nation in lougei lit to 

bold any office 

oor ";■ pr< 

...it that tl ding has n<> analogy 

You i.-- give the respondent notice of the 

:::. Vou . -you do not require 

you prdc i-t him and will go on to 

cause iu hi , and make the Bnal order therein. How 

iry criminal procedure, 
are bound by no law, i i ate <a - 

Von consult n<: pre- 
he law and ci. . You 

ound only by the natural principles i I and jus- 

- can aid yon, and 
impeachment declim d 
the r< qui I [ouse of 

□See. 

resolved, in the 

,"Thattb b, when brought .before 

! 'arliament, and not by 

a other inferior courts.'' 

bich was ; :i be opinion of all the 

linst the Richard 1 1, remains tli" 

law of England to tl 

guisbing it from a court 
that it is a • 
party to an^ 

in I'arliai when that was 

tting to ] gainst the 

- .••■ Trials, p. 521,) as 
' d that the D Marquis 



of Northampton and the Earl* of Pembroke, for an attempt upon whose lives 
Somerset was on trial, should nit in judgment upon him against the objection of 
the accused because "a peer of the realm might not be challenged." 

Again, the Duke of Northumberland, (ibid., Lst State Trials, p. 765,) Marquis 

of Northampton, and Earl id' Warwick, being on trial for their lives, A. ]>. 1553, 

before the Court of the Lord High Steward of England, one of the prisoner. 

inquired whether any such persons as were equally culpable in that crime, and 
those by whose letters and commandments he was directed in all his doin 
might be his judges, or pass upon his trial at his death. It was answered that. 
" If any were as deeply to he touched as himself in that Case, yel as long a 

attainder of record were against them, they were nevertheless persons able in 
the law to pass upon any trial, and not to be challenged therefor, hut a1 thi 
prince's pleasure." 

Again, on the trial of Earls of Essex and Southampton, (ibid., 1 State Trials, 
p. 1335,) for high treason, before all the justices of England, A. D. 1G00, tin- 
Earl of Essex desired to know of my Lord Chief Justice whether he might 
challenge any of the peers or no. Whereuntothe Lord Chief Justice answei 
"No." 

Again, in Lord Audley's case, (ibid., 3 State Trials, page 402, A. D. 1631,) 
it was questioned whether a peer might challenge his peers, as in the case of 
common jurats. It was answered by all the judges, after consultation, ' ; he 
might not." [This case is of more value because it was an indictment for being 
accessory to rape upon his own wife, and had no political influence in it what- 
ever.] The same point was ruled in the Countess of Essex's case on trial for 
treason. (Moore's Reports, 621.) 

In the Earl of Portland's case, A. D. 1701, (ibid., State trials, page 2SS,) the 
Commons objected that Lord Sommers, the Earl of Oxford, and Lord Halifax, 
who had been impeached by the Commons before the House of Lords for being 
concerned in the same acts for which Portland was being brought to trial, vol 
and acted with the House of Lords in the preliminary proceedings of said trial, 
and were upon a committee of conference in relation thereto. But the lords 
after discussion solemnly resolved " that no lord of Parliament, impeached of 
high crimes and misdemeanors, can be precluded from voting on any occasion, 
except on his own trial." 

In the trial of Lord Viscount Melville, A.D. lS0G,(ihid., 29 State Trials, p. 1398.) 
some observations having been made as to the possible bias of some portion of 
the peers, (by the counsel for defendant,) Mr. Whitebread, one of the managers 
on the part of the Commons, answered as follows : 

My lords, as to your own court, something has been thrown out about the possibility of a 
challenge. Upon such a subject it will not be necessary to say more than this, which hi - 
been admitted : that an order was given by the House of Commons to prosecute Lord Mel- 
vilb in a court of'law where he would have the right to challenge his jurors. * What 

did he nohle Viscount then do by the means of one of his friends ? Prom the 

moii h of that learned gentleman came at last the successful motion : " thai Henry, Viscount 
of Melville, be impeached ofhigh crimes and misdemeanors." I am justified, then, in saying 
that he is here by his own option. But, my lords, a challenge to your lordships 

Is not every individual peer the guardian of his own honor? 

In the trial of Warren Hastings the same point was ruled, or, more properly 
speaking, taken for granted, for of the more than 170 peers who commenced 
the trial, but 29 sat and pronounced the verdict at the close, and some of those 
vere peers created since the trial began, and had not heard either the opening 
or much of the evidence ; and during the trial there had been by death, succes- 
sbn, and creation more than ISO changes in the House of Peers, who were his 
jmges. 

We have abundant authority also on this point in our own country. 

In the case of Judge Pickering, who was tried in March, 1S04, for drunken- 
ness in office, although undefended in form, yet he had all his rights preserved. 



tree senators — Samuel Smith, of 
Vermont, and John Smith, of New York — who had 
all been memb i B and there voted in favor of 

impeaching Judge Pickering, were senators when hie trial came oil'. 

k, raised the question, by asking to he excused from 
ing. Mr. Smith, of Mary] ind, declared " he would not he influenced from his 
daty by any false th ll be, for his pari, felt no delicacy upon the BUD- 

riven in tlie other house to impeach Judge Pickering 
would have no influence upon him in the court : his constituents had a right to 
his vote, and he would not by any act of his deprive, or consent to deprive, 
them of that right, hut would claim and exercise it upon this a- U] 
other question thai Bubmitb 8 mate whilst he had the honor of 

.t." 
A vote being had upon the question, i r was determined that these gent-1 
Bhould sit an-! vote on the trial. This passed in the affirmative by a vote of 
L9 to 7. and all :' ■ '. on every question during the 

trial. 

< >n ;li.- iiiil of Samuel ; fore the of the United States, no 

challenge was attempted, although the casewas derided by an almost strict party 
■ in high party times, and doubtless many of the senators had formed and 
expressed opini >ns upon his conduct. 

That arbitrary judge, hut learned lawyers knew too much to attempt any such 

futile mov< menl as a challenge to a Benator. Certain it is that the proprieties 

of the occasion were not marred by the worse than anomalous proceeding of the 

challenge of one senator to ariother, especially before the defendant had appeared. 

Nor did the Managers exercise the right of challenge, although Senators Smith 

and Mitchell, of New York, were members of the Senate on the trial and voted 

guilty on every article, who hail been members of the House when the 

articles were found, and had there voted steadily against the whole proceeding. 

Judgi Peck'i case, which was tried in L831, afibrds another instance in point 

I'll.- conduct "f Judge Peck had been thesubjecl of much animadversion and 

menl by the public, and had been for four years pending before theCongi 

the United 6 it finally came to trial. It was not possible but 

thai many of the s, nate had h >th formed and expressed opinions upon Peck's 

proceedings, .-.nd yet it never occurred to that good lawyer to make obj ctionto 

bis ti ii i.-. Nor did the Managers challenge, although Webster of Massachusetts 

was a met I the committee of the House of Representatives to whom the 

petition for impeachment was n ferred, and which, a mination, reported 

thereon " leave to withdraw," and Sprague, of Maine, voted against the proceed 

iugsinthe House, while Livi of Louisiana, voted for tin in. All of thi - 

lemen sal upon tie- trial, and voted as they did in the Hout 

A \ i ry remarkable and instructive case was that of J udge Addison, of P< . n- 

-yl\ ania, in L804. Then', after the articles of impeachment were framed, the fial 

postponed to another session of the legisl iture. Meanwhile, three memVers 

B B ives, who had voted for the articles ot impeachment, 

the £ ud 1 ) the triers of the articles of im] ntof 

which they had solemnly voted the respondent to he guilty. To their sitting on the 

trial Judge Addison objected, but after aa< rgument his objection 

rrul 1, I '. to 6. Two oi the minority were the gentlemen who had 

Ity, and who tl to sitting on the trial. 

Thu ipon authority. How di ad upon principle ? 

In .i conference beld in 1691, betwee the lords and commons, on a proposr 

to limit the numh ide answer : 

• the groat 

!i than any othe in, tb je 



There have been many instances in England where this ni at no 

; tensed from sitting On such trials, lias produced curious results. 

Brothers have sal upon the trials of brothers, fathers upon the trials of sons and 
daughters, uncles upon the trials of nephews and nieces; no excuse being 
itted. 
One, and a most peculiar and painful instance, will Buffice upon this point to 
illustrate the strength of the rule. In the trial of Anne Bullen, the wife of one 
sovereign id' England, and the mother of another, ijer father, Lord Rochefort, 

and her unele, the Duke of Norfolk, sat as judges and voted guilty, although 

of the charges against the daughter and niece was a criminal intimacy with 
1 er brother, the son and nephew of tin- judges. 

It would Beem impossible that, in a proceeding before Buch a tribunal so con- 

stituted there could be a challenge, because as the number of triers is limited 

by law. and as there are not now, and never have been, any provisions, either in 

England or in this country, for substituting another for the challenged party, as 

talesman is substituted in a jury, the accused might escape punishment alto- 

ther hy challenging a sufficient number to prevent a quorum, or the accuser 
might oppress the respondent by challenging all persons favorable to him until 
the necessary unanimity for conviction was secured. 

This proceeding being but an inquest of office, and. except in a few rare 
instances, always partaking, more or less, of political considerations, and re- 
quired to be discussed, before presentation to the triers, by the co-ordinate branch 
of the legislature, it is impossible that senators should not have opinions and 
convictions upon the subject-matter more or less decidedly formed before the 
case reaches them. If, therefore, challenges could be allowed because of such 
opinions,, as in the case of jurors, no trial could go forward, because every intel- 
ligent senator could be objected to upon one side or the oth( r. 

I should have hardly dared to trouble the Senate with such minuteness of 
lion and argument upon this point, were it not that certain persons and 
papers outside of this body, by sophistries draw:: from the analogies of the pro- 
ceedings in courts before juries, have endeavored, in advance, to prejudice the 
public mind, but little instructed in this topic, because of the infrequency of 
impeachments, against the legal validity and propriety of the proceedings upon 
this trial 

1 may be permitted, without offence, further to state that these and similar 
reasons have prevented the Managers from objecting by challenge or otherwise to 
the competency of one of the triers of near affinity to the accused. 

We believe it is his right, nay, his duty to the State he represents, to sit upon 
the trial as he would upon any other matter which should come before the Sen- 
ate. 1 1 is seat and vote belong to his constituents, and not to himself, to be 
used according to his best judgment upon every grave matter that comes before 
die Senate. 

Again, as political considerations are involved in this trial raising questions 
of interest to the constituents of every senator, it is his right and duty to express 
himself as fully and freely upon such questions as upon any other, even to 
express a belief in the guilt or innocence of the accused or to say "he will Mis- 
tain him in the course he is taking," although he so says after accusation brought. 
Let me illustrate. Suppose that after this impeachment had been voted 1 y the 
House of Representatives the constituents of any senator led called a public 
meeting to sustain the President against what they were pleased to term the 
" tyrannical acts of Congress towards him in impeaching him," and should call 
upon their senator to attend and take part in such meeting, I do not coma ive 
that it would, or ought to lie legally objected against him as a disqualiticati 
sit upon this trial, upon the principles I have Btat( d, if he should attend the meet- 
ing, or favor the object, or, if his em. in the Senate prevented his leav- 
ing, I have noi been able to find any legal objection in the books to bis writing 



10 

a let! . . like the 

follow 

' !h wiiu.k, 1'tbruary \ 

I ements will be such on the 

tit 

our free 
bout the unfortu- 
u him and I aed him. And this J shall cou- 

duty. With my bi I thanks for the I 

I in my p •■ pi it, 

-lit, 

REVERD* JO 

should have as much right to expect his vote on a clearly«proven & 
guilty as had King Henry the Eighth to hope for the vote of her father against 
his wife. Il«- g 

8 »th of his ca , ■ know the Btrength of ours 

id that this ig an infelicity, il is a and decisive answer that 

the infelicity of a precise constitutional provision, which provides that th< 
hall have the sole power to try impeachments, and the only security 
judice on the part of any senator is that two-thirds of the Ben- 
viction. 
To this rule there is bul . founded on both reason and 

authority, that a senator may not be a judge in his own case. 

I have thought it ni cessary to determine thenatureand attrihuti - ol the Trib- 
unal, and meaning of the accusation before it. 
The jet oul in b< veral distinct forms the actsof the respond- 

office, and appointing Mr. Thomas, ad interim, 

differing in legal effect in I >r which and the intent with which, 

either or both of the acts w< re done, and the legal duties and rights infringed, 

< olated in bo doing. 

All : : ee allege in contravention of his < , .- 1 1 1 1 of office, 

and in of 

[f :!. dent raighl have thi 

: official misconduct, and, as 
able. 

- which, if done in disre- 
i8, then the exercise of that power i 

. r of pardon ; i ed in a given case for a corrupt 

notfr paj tey, or wantonly pardoning all criminals, it 

would hi might be multiplied indefinitely. 

Arti •! verbiage, alleges that, having suspended Mr. 

md reported the same to the Senate, which refused to concur in tin 
>n, and Stanton having rightfully resumed the d bis office, thi 

v.. with knowledge of the fa< I an order which is recited for 

Stan . >val, with intent to violate th March 2, L867, to regulate 

■'•rtain civil offices, and with the further intent to remove Stan- 
from the office of S in the lawful discharge of il 

. contravention of witboul the ad consent of the 

astitution oi the United States. 
bat the Presid ithorityof law, on the 2lstol 

• r oi authority to ■' i I homas to acl ae Secre- 

tary ol War ad interim aate being In est on, in violation of the tenure- 

of-ofl '. and with intent i<> viola ituti >n", then.- being no 

■ 



11 

Article 3 alleges the Bame act as done withoul authority of law, and all 
an intent to violate the Constitution. 

Article 1 charges thai the President conspired with Lorenzo Tuoma 
divers other persons, with intent, by intimidation and threats, to prevent Mr. 
Stanton from holding the office of Secretary of War, in violation of the I ' 
tution and of the act of July ■'!!, L861. 

Article 5 charges the Bame conspiracy with Thomas to prevent Mr. Stanton's 
holding his < by to prevenl the execution of the civil tenui 

Artie the President conspired with ThomaB to Beiz» 

i the property under the control of the War Departmenl by force, i 
•ion of the acl of July 31, 1SG1, and with intent to disregard the civil 
tenure-of-office 

Article 7 charges the same conspiracy* with intent only to violate th ; 

tenure-of-office act. 

Articles 3d, 4th, 5th, 6th, and 7th may all be considered together, as to tin; 
proof to support them. 

It will be Bhown that having" removed Stanton and appointed Thomas, the 
President senl Thomas to the War : office to obtain possession ; that having 
mel by Stariton with a denial of bis rignts, Thomas retired, and after consulta- 
tion with the President, Thomas asserted his purpose to take possession of the 
War Office by force, making his boast in several public places of his intentions 
so to do, but was prevented by being promptly arrested by process from theconrt. 

This will be shown by the evidence of ilon. Mr. Van Horn, a member of the 
Mouse, who was present when the demand for possession of the War Office was 
made by General Thomas, already made public. 

By the, testimony of the Hon. Mr. Burleigh, who, after that, in the evening of 
the twenty-first of February, was told by Thomas that he intended to take pos- 
session of the War Office by force th- following morning, and invited him up to 
see the performance. Mr. Burleigh attended, but the act did not come off, for 
Thomas had been arrested and held to bail. 

By Thorn ing at Willards' hotel on the same evening that he should 

call on General Grant for military force to put him in possession of the office, 
and he did not see how (J rant could refuse it. 

Article 8 charges that the appointment of Thomas was made for the purpose 
of getting control of the disbursement of the moneys appropriated for the mili- 
tary service and Department of War. 

In addition to tin; proof already adduced, it will be 'shown that, after the 
appointment of Thomas, which must have been known to the members of his 
cabinet, the President caused a formal notice to be served on the Secretary of 
the Treasury, to the end that the Secretary might answer the requisitions for 
money of Thomas, and this was only prev< nted by the firmness with which 
Stanton retained possession of the books and pipers of the War Office. 

It will be seen that every fact charged in Article J is admitted by the answer 
of the respondent; the intent is also admitted as charged; that is to say, to set 
aside the civil tenurc-of-office act, and to remove Mr. Stanton from the office of 
tii" Secretary for the Department of War without the advice and consent of the 
Senate, and, if not justified, contrary to the provisions of the Constitution it self 

The only question remaining is, doca the respondent justify himself by the 
Constitution and laws ' 

On this heavers, that by the Constitution, then is "conferred on the Pri sident, 
as a part of the executive power, the power at any and all times of removing 
from office all executive officers for cause, to be judged of by the President 
alone, and that he verily believes that the executive power of removal from 
office, confided to him by the Constitution, as aforesaid, includes the power of 
suspension from office indefinitely." 

Now, these offices, so vacated, must be filled, temporarily al by his 



12 

n gnum in 
the ■ of the law b in claims, therefor 

nee ;':11 their places with appointments of his choice, and that 

pow er cannot I y any law of ( 

because, fa avers,.'* that the powi red, and the- di :ercisingit 

in!:: Ion the President by the Constitution of the United 

md that th . i ilii- power, or relieved 

of this duty, nor could the sun.- be \ •! bylaw in: ad the 

(jointly, either in part or whole." 
This, then, i- the plain and i; 8 «: and the 

American people : 

Has the President, under li. i a, the more than kingly prerogative 

■ ill \i> remove from office and i :e indefinitely, all executive 

sere of the United States, either civil, military, or naval, .at any and all times, 

and iill the vacancies with creature- of Ins own appointment, for his own pur- 

-. without any restraint whatev< r, i r possibility i f restraint by the Senate 

or by I through laws duly enacted? 

The House of Representatives^ in behalf of the people, join this issue by 

affirming that the exercise of such powers is a high misdem sanor in office. 

It the affirmative is maintained by the Respondent, then. so far as the first 

i ncerned — unless such con-up: purposes are Bhown as will of 

aselves make the exerciaeofa legal power a crime — the respondent must go, 

and onght to go quit and tree. 

Therefore, by these article.-; and the answers thereto, the momentous question,' 

here and now, is raised whether the presidential office itself (if it has the pre- 

itives and power claimed for it ) ovght% infact, to exist as a part nf thecon- 

ttional government of a free people, while by the last three articles the 

Bimpler and ti be important inquiry is to be determined, whether Andrew John- 

I .- conducted himself that he ought longer to hold any constitutional 

■ r. The latter sinks to merited insignificance compared with the 

ur of the former. 

If that is sustained, and power hitherl i unclaimed and unknown 

to the people of the country is engrafted on the Constitution, most alarm;., a 

orrupting in its influence, most dangerous in its tendencies, 
and most tyrannical in its exi rciae. 

Whoever, therefore, votes "not guilty" on these articl ochain 

Free institutions, and to prostrate 1 :t of any man who, being 

President, may choose to control them. 

I r this most stupendous and unlimited prerog indent cites no 

line and adduces no word of constitutional CI —indeed he could not, 

for the only mention of removal from office in the Constitution is as a part of 

the judgment in case of impeachment, and the only p iwerol appointment is by 

ination I i the Senate of officers to be appointed by their advice an I c »n 

a qualified and limited pow b tl P when the 

: . Whence then does the respondent by his answer 

dai: derived this] [give him tin- hen lit of his dwn words, 

"that it was practically settled by the first • ol th l"; 

1 1 i in the benefit of his ow phra forth in his message to 

the Senate of 2d of March, 1 SGI . made n part of hi ■ •• the question was 

led bj tl.' 1 1 of J of 3 1 to 20, (in this, how- 

it,) and in the Sem of the Vice-Pi 

! be undertook the exerci 

roua and Btupend . alter '/ ."> years of study and exami- 

i titution by the p living under it. another I has 

that there was no such unlimited power. So that he admits that this 
iwer which hi claims from the legislative construction ofi 



13 

gress by vote in th 

dci. other Bouse of more than three times the cumber of ra< • 

a vo ol L33 to 3*3 ; and by a Senate of more than double the number ol 
itora by a vote of 38 to LO, and this too after he had present) n all 

the arguments in it • favor that he could find to sustain his claim of power, 

If he derives this power from the practical settlement of oni of a 

nstruction of the constitutional provisions, why may not Buch 
stru :- ; practically settled more authoritatively by the ; tnanimity 

ither Congress — yea, as we shall see, of many othci i 

The great question, however, still returns upon ua — whenc imes 

pov, .. derived or conferred? Is it unlimited and unrestrained 1 illim- 

■ and unrestrainable, as the Pi [aims it to be? 

in presenting this topic it will he mydnty, and ! shall attempt to do nothing 
• . than to state the propositions of law and the authorities to support them 
a- as they may come to my knowledge, leaving the argument and illustra- 
be question to he extendi d in the close by adder and better hands. 

if a power of r< in oval in the Ex( found at all in the Constitution, it 

is admitted to be an implied one. either from the power of appointment, 
• the executive power is vested in the Presid 

lias the executive power granted by the Constitution by these words any 
limitations' Dot-' the Constitution invest the President with all executive 
natives, privileges, and immunities' enjoyed by executive officers of 
other countries — kings and emperors — without limitation'.'' If so, then the 
Constitution lias been much more liberal in granting powers to the Execul 
than to the legislative branch of the government, as that has only "all h s 
lative [lowers herein granted -[which] shall be vested in the Congress of the 
United States;" nofall uncontrollable legislative powers, as there are many lim- 
itations upon that power as exercised by the Parliament of England for 
example. So there are many executive powers expressly limited in the ( 
Stitution, such as declaring war, making rules and regulations for the gov< 
meut of the army and navy, and coining money. 

As some executive powers are limited by the Constitution itself, is it no: 
that the words "the executive power is vested in the President" do not confer 
on him all executive powers, but must be construed with reference to other con- 
stitutional provisions granting or regulating specific powers? The e* 
tive power ol' appointment is clearly limited by the words "he shall nominate 
and by and with the advice and consent of the Senate shall appoint embass i- 
dors, * * * and all other officers of the United States whose appointments 
are not herein otherwise provided tor, and which shall be established by law." 

Is it not, therefore, more in accordance with the theory of the Constitution to 
imply the power of removal from the power of appointment, restrained by like 
limitations, than to imply it solely as a prerogative of executive power and thi 
fore illimitable and uncontrollable? Have the people anywhere els • in the Con- 
stitution granted illimitable and uncontrollable powers either to the executive or 
any other branch of tin' government .' Is not the whole frame of governm 
one of checks, balances, and limitations ? Is it to be believed that our fathers, 
just escaping 'from the oppressions of monarchical power, and so dreading it 
that they feared the very name of king, gave this more than kingly power to 
the Executive, illimitable and uncontrollable, and that too by implication merely 1 

Upon this point our proposition is, that the Senate being in session, and an 
office, not an inferior one. within the term- of the Constitution being tilled, 
the President has the implied power of inaugurating the removal only by nom- 
ination of a successor to the Senate, which, when consented to, works the full 
removal and supersedeas of the incumbent. Such has been, ir is believed, the 
practice of the government from the beginning down to the act about which 



1 • 

ire inquh tain it is that Mr. v Senate in 1S35, so 

liction, using the following language : 

1 be 8 - and another be appointed, the first goes out by the mere 

he Appointment of the other, without any previous act <>t removal whatever. 

and has been from the first. I" all the 
■■• bich have bei n made tbej rally been ■ Sleeted simply by making other 

not tin'! a case t" the contrary. There is no such thing as any distinct 
I have looked into the practice, and caused inquiries to be made in 
! ini that any such proceeding is known as an entry or record 

P dent would only act in bucu case 
oof of the fact of removal [am aware 
■ in which notice lias in en sent to persons in office that their 
rhese are usually cases in which 
the • oform the incumbent that he is removed, but to tell him thai a successor 

I will be appointed, [f there be any instances in which such 
riven, witho reference to the appointment of a successor, few; 

■ ice must l"- inij' e in ii" case is there any dist 

[ can find, unconnected with the act of appointment. 

provisions of the Constitution, the right 

t l the I 'rrsiilcllt. tO be executed 8Ub modo, .IS is the pOWet' of 

.t mint, the appointment, whe i imated, making the removal, 

tely debati d in the first < longress upon the bills i 
lishing a De] | artment. The deb 

... : ;i Committee of the Whole, to strike out, after the title of 
r, the words, "to be n i srable from office by the President of the 

iscussed in Committee of the Whole in the 

Hon the clause retained by a vote of 20 yeas to 34 nay.-, which Beemed 

stablish the pon er of removal as eithi r by a legislative grant, or construction 

the Constitution, i riumph of its friends was ^hort-lived, for when 

the bill came up in the Bouse, Mr. Benson moved to amend il by altering the 

rid - i ti< f '\ i bill, so as to imply only the power of removal to be in the 

rtin^, that " whenever the principal officer shall be remo 1 
. office by the President of the United States, or in any other case ol 
I clerk shall, during such vacancy, have charge and custody 
. . and papers appertaining to the department." 
B uson " declared he would move to strike out the word- in the first 
removable by the President, which appear I somewhat like a 
the mode he took would evade thai point and ih a legislative 

truction of the Constitution. If d his amendment would succ 

B to the decision and quieting the minds of 

ntlemen." 

Mr. Benson then moved 

■ in the words "to be removable by the 1 it of the United States, " 

i rii d, 31 to 19; bill was I and sent to 

ite. 

'The being in eecrel we have no record of the 

.. which aros( on the motion of Mr. Benson establishing the implied 

removal; but after very elaborate consideration, . ral successive 

this power in the President were retained by the 

Adams, the Vice-Presideut. So, if this claimed "legis- 

iblisbed by the vote of the Becond executive 

ir woes in this government have come 

the War Department came 

np, tl vable by the President," were struck out, on 

■ i tie- opponents of the recognition of this power, by a vote of 

icndmonl to that of the second section of the act establishing 

d. When, -i\ year- afterward.-, the De- 

the Navy ■. recognition ol the power of the 

measure passed by a strict party 



rote! •!"/ yeaa bo II Days, i f may well be conceived that Lta advi I not 

care to load it with this constitutional question, when the executive power was 
about passing into other bands, for on,' cannot read the debates upon this ques- 
tion without being impressed with the belief that reverence Jot- the character of 
Washington largely determined the argument in tin- first Congress. Neither 
party did or could have looked forward to such an executive administration as 

we have this day. 

Ii has generally l» en conceded in subsequent discussions that here wasa legis- 
lative determination of this question, but I humbly submit that taking the whole 
action of CongresB together it i.-> very tar from being determine!. I should 
hardly have dared, in view of the eminent names of Holmes, Clay, Webster, 
and Calhoun that have heretofore made the admission, to have ventured the 
assi rtion, were it not that in every case they, as does the President and his coun- 
sel, rely on the first vote in the Committee of the Whole, sustaining the words " to 
be removable by the President," and. in no instance take any notice of the subse- 
quent proceedings in the House by which those words were taken out of the bill. 
This may have happened because Eliot's Debates, which is the authority most fre- 
quently cited in these discussions. Btops with the vote in Committee and takes no 
notice of the further discussion. But whatever may be the effect of this legis- 
lative construction the contemporaneous and subsequent practice of the govern- 
ment shows that the President made no removals except by nominations to the 
Senate when in session, and superseding officers by a new commission to the 
confirmed nominee. Mr. Adam?, in that remarkable letter to Mr. Pickering, in 
which he desires his resignation, r< quests him to semi it early in order that he 
may nominate to the Senate, then about to si!, and he in fact removes Mr. 
Pickering by a nomination. Certainly no such unlimited power has ever been 
claimed by any of the earlier Presidents as has now been set up for the Presi- 
dent by bis most remarkable, aye. criminal answer. 

It will not have escaped attention that no determination was made by that 
legislative construction as to lioui the removal, if in the President's power, should 
be made, which is now the question in dispute. That has been determined by 
the universal practice of the government, with exceptions, if any, so rare as not. 
to be worthy of consideration ; so that we now claim'the law to be what the prac- 
tice has ever been. If, however, we concede the power of removal to be in the 
President as an implied power, yet we believe it cannot be successfully con- 
tended upon any authorities or constant practice of the government that the 
execution of that power may not be regulated by the Congress of the United 
States under the clause in the Constitution which " vests in Congress the power 
to make all laws which shall be necessary and proper for carrying into execu- 
tion * * * all powers vested by this Constitution in the government of 
the United States or in any department or officer thereof.'* 

This power of regulation of the tenure of office, and the manner of removal, 
has .always been exercised by Congress unquestioned until now. 

On the 1.5th of May, 1S20, (vol. 3 Stat, at Large, p. 582,) Congress pro- 
vided for the term of office of certain officers therein named to be four y< 
but made them removable at pleasure. By the second section of the same act 
Congress removed from office all the officers therein commissioned, in providing 
a date when each commission should expire. Congress has thus asserted a legis- 
lative power of removal from office; sometimes bypassing acts which appear to 
concede the power to the President to remove at pleasure, sometimes restricting 
that power in their acts by the most stringent provisions ; sometimes conferring 
the power of removal, and sometimes that of appointment — the acts estab- 
lishing the territorial officers being most conspicuous in this regard. 

Upon the whole, no claim of exclusive right over removals or appointments 
seems to have been made either by the Executive or by Congress. No bill was 
■ever vetoed on this account until now. 



In IMS, Mr. Wiit, then A;: teral, giving the earliest official opinion 

on this q iming from tha lid that only when: Congress had not 

undertaken :•> restrict the tenure < t office, by the ad creating it, would a commis- 
si '!ni ing tlio pleasure of the President ; but it' tin 1 tenure was fixed 
by law, iln a commission must conform to the law. No constitutional scruples as to 
the powi to limit the tenure of office seem to have disturbed the 

mind i t' that great lawyer. But this was before any attempt had been made by 
any Pit Bident t<» arrogate to himself the official pattoni ge tor the purpose of party 
or personal aggrandisement, which gives the only value to this opinion as an 
autb lie Attorney ( .V:. rial's office has become a political one I shall 

nut trouble tie- Senate with citing or examining the opinions of its occupatfts. 

In 1826 a committee of tie- Senate, consisting of Mr. Benton of Mi- 
chairman, Mr. Macon of North Carolina, Mr. Van Buren of New Fork, Mr. 
Dickerson "i . Mr. Johnson of Kentucky, Mr. White of Ten- 

Mr. Holmes of Maine, Mr. Hayne of South Carolina, and Mr. Findlay 
d 'to take into consideration the question of 
restraining the power of the Presidi nl over removals from office, who made a 
rl through their chairman, Mr. Benton, Betting forth the extent of the evils 
arising from the power of appointment to and removal from office by the Presi- 
laring that the Constitution had been cl anged in this regard, and tha!: 
" construction and legislation have accomplished this change," and submitted 
two amendments to the Constitution, one providing a direct election of the Pres- 
by the people, and another "that no senator or representative should be 
appointed to any place until the expiration of the presidential term in which 

such person shall have served as Benator or representative," as remedies for 

of the evils complained of ; but the committee say, that " not being abh 

to reform the Constitution, in tie- election of President they must gd to work 

upon his powers, and trim down these by statutory enactments whenever it can 

he dun.- by law and with a just regard to the proper efficiency of government, 

ami for this purpose reported six bills — one, to regulate the publication of the 

and public advertisements : another^ to secure in office faithful collectors 

and disbursers of the reveilles, and to displace defaulters — the first section of 

which vacated the corns if "all officers, after a given date, charged with 

tie- collection and disbursement of the public moneys who had failed to account 

ich moneys on or before the 30th day of September preceding;" and the 

>nd Bection enacted that "at the same time a nomination is made to fill a 

vacancy occasioned by the exercise of the President's power to remove from 

office, the tact of the removal shall he Stated to the Senate with a report of the 

• us for which such officers may have been r< moved ; also a hill to regulate 

appointment of postmasters ; and a bill to prevent military and naval officers 

from being dismissed the service at the pleasure of the President, by inserting 

a clause in tie- commission of such officers that •• it is to continue in force during 

i behavior," and "that fficer shall ever hereafter be dismissed the service 

pt in pursuance of the sentence of a court-martial, or upon address to the 
President from the two bousee of Congress." 

not remarkable that exactly correlative measures to these have been 
passed by the 39th Congress, and are now the subject of controversy at this 
bar I 

in to have occurred to this able committee that Congress had 
the pov.i t to curb the Executive in this regard, because they asserted the 
practice of dismissing from office "to be a dangerous violation of the Constitu- 
tion." 

In L830 Mr. Mobiles introduced and diflCUSSed in the Senate a series of reso- 
lutions which contained, among other things, " the righl of the Senate to inquire, 
and the duty of the l'i> Bident to inform thl m, when and lor what causes any 
i in tie' '/ ti In I 15 Mr. ('alhoun, \lr. Southard, 



17 

Mr. Bibb) Mr. Webster, Mr. Benton, and Mr. King, <>i Georgia, <>i tin- Bei 
were elected a committee to consider the Bubject of Executive patronage, and the 
means of limiting it. Thai committee, with bui one dissenting voice, (Mr. Ben- 
i on , ) reported a hill which provided in its third section " that in all nominations 
made by tin- President to the Senate, to (ill vacancies occasioned by removal from 
office, tin' fact Hi' the removal shall be Btated to the Senate at, the same time that 
the nomination is made, with a statement of the reasons for snch removal." 

It will be observed that this is the precise Election reported by Mr. Benton in 
1826, anil passed to a second reading in the Senate. After much discussion, 
tlir hill passed the Senate, -'il yeas, l<; nays — an almost two-thirds vote Thus 
it would seem that the ablest men of that day, of both political parties, sub- 
scribed to the power of Congress to limit, and control the President in his 
removal from office. 

One of the most marked instances of the assertion of this power in Congress 
will be found in the act of February 25, 1S63, providing for a national currency and 
the office of Comptroller. (Statutes at Large, vol. 12, p. 665.) This controls both 
the appointment and the removal of that officer, enacting that he shall be 
appointed on the nomination of the Secretary of the Treasury, by and with 
the advice and consent of the Senate, and shall hold his oilice for the term 
of five years, unless sooner removed hy the President, hy and with the advfee 
and consent of the Senate. This was substantially re-enacted June 3, 1864, 
with the addition that " he shall be removed upon reasons to be communicated 
to the Senate." 

Where were the vigilant gentlemen then, in hoth houses, who now so denounce 
the power of Congress to regulate the appointment and removal of officers by 
the President as unconstitutional ? 

It will he observed that the Constitution makes no distinction between the 
officers of the army and navy and officers in the civil service, so far as 
their appointments and commissions, removals and dismissals, are concerned. 
Their commissions have ever run, "to hold office during the pleasure of the 
President;" yet Congress, by the act.of 17th July, 1862, (Statutes at Large, 
volume 12, page 596,) enacted "that the President of the United States be, 
and hereby is, authorized and requested to dismiss and discharge from the mili- 
tary serviee, either in the army, navy, marine corps, or volunteer force, in the 
United States service, any officer for any cause which, in his judgment, either 
renders Buch officer unsuitable for or whose dismission would promote the pub- 
lic service." 

Why was it necessary to authorize the President so to do, if he had the Con- 
stitutional power to dismiss a military officer at pleasure? and his powers, 
whatever they are, as is not doubted, an; the same as in a civil oilice. The 
answer to this suggestion may be that this act was simply one of supereroga- 
tion, only authorizing him to do what he was empowered already to do, and 
therefore not specially pertinent to this discussion. 

Put on the 13th of July, 18G6, Congress enacted " that no officer i:i the mil- 
itary or naval service shall, in time of peace, be dismissed from service except 
upon, and in pursuance of, the sentence of a court-martial to that effect." "What 
becomes, then, of the respondent's objection that Congress cannot regulate his 
power of removal from office? in the snow-storm of his vetoes why did no 
flake light down on this provision ? It concludes the whole question her 
issue. It is approved; approval Bigned Andrew Johnson. 

It will not be claimed, however, if the tenure-of-office act is constitut 
(and that question I shall not argue, except as has been done incidentally, for 
reasons hereafter to be stated,) that he could remove Mr. Stanton provided the 
office of Secretary of "War comes within its provisions, and one claim made here 
before you, by the answer, is that that office is excepted by the terms of the law. 
Z B 



18 

( >t com s< I shall not argue to the Senate, composed mostly of those who passed 

the bill, what their Irishes and intentions were. Upon thai point I cannot aid 

them, 1'Ut tin- construction of the net furnishes a few suggestions. First let us 

rmine the ■ rael status of Mr. Stanton at the moment of its passage. The 

i < r admits Mr. Stanton was appointed and commissioned and duly qualified 

Secretary of War under Mr. Lincoln in pursuance of the act of 1789. In 

the i any other legislation or action ol the President, he legally held 

his office (luring the term of his natural life. This consideration is an answer 

gestion as to the Secretary holding over from one presidential term 

to another. 

< hi the 2d of March, 1867, the tenure-of-office act provided, in substance, that 
all civil officers duly qualified to act by appointment, with the advice and eon- 
sent oi the Senate, Bhall be entitled to hold such office until a successor shall 
have been in like manner appointed and duly qualified, except as herein other- 
wise provided, to wit: "provided thai the Secretaries shall hold their office dur- 
the term of the President by whom they may have been appointed, and for 
i tie month then afb r, Bubj< ct to n moval by and with the advice and consent of 
the 8< oate." 

By whom was Mr. Stanton appointed? By Mr. Lincoln. Whose presiden- 
tial term was he holding under when the bullet of Booth became a proximate 
cause of this trial / Was not his appointment in full force at that hour ? Had 
any act of the respondent up I (the L2th day of August last vitiated or iuter- 
1 with that appointment .' Whose presidential term is the respondent now 

Bus own, or Mr. Lincoln's.' If his own, he is entitled to lour 

ire up to the anniversary of the murder, because each presidential term is 
'our y< are by the ( 'onstitution, and the regular recurrence of those terms is iixed 
May v . L792. If he is serving out the remainder of Mr. Lin- 
coln's t< i m, then bis term of office expires on the 4th of March, 1869, if it does 
not 1" 

I- not the statement of these propositions their Bufficienl argument? If Mr. 
Stanton's commission was vacated in any way by the " tenure-of-office act," 
then it must have ceased one month after/the 1th of March, 1865, to wil : April 
;. L865. Or, if the "tenure-of-office act" had no retroactive effect, then his 
on must have ceased if it bad the effeel to vacate his commission at all 
on the passage i f the act, to wit, 2d March, 1867 ; and, in thai case, from thai 
date to the pr< -■ n1 be must have been exercising bis office in contravention of 
d Bection of the act, because he Was nol commissioned in accordance 

And the President, by "employing" him in bo doing from 
2d March to 12th August, became guilty of a high misdemeanor under the pro- 
vision of the' sixth section Of said act ; so thai if the 1 Ve.-ideiit shall succeed in 

convincing the Senate thai Mr. Stanton has been acting as Secretary of War 
osl the provisions of the "tenure-of-office act," which he will do if he con- 
vince them thai that act vacated in any way Mr. Stanton's commission, or that 
he trims* If w i ing out the remainder ol Mr. Lincoln's presidential term, 

■ '■ e ol Representatb bul to report another article fur this 

ove the President upon hi own confession. 

rer, that in the di cussion at the time of the passage ol 

by si Betors tending to show- thai it did nol 

• rted thai no member of the cabinel of 

ild wish to in. hi his place against the wishes of his chief, by 

whom Ik lied into conned ; and these arguments have been made 

, OU a meritorious officer, which may have so influenced 
the mind t is my duty to observe upon them in meet arguments 

UUICC of le 

Without stopping to deny the . there 

: I it. 



19 

The respondent did not call Mr. Stanton into his council. The blow of the 

assin did call 1 1 1 « - respoodenl to preside over a cabinet of which Mr. Stanton 

was then an honored member, beloved of its Chief j and if therespondentdeserted 

the principles under which he was elected, betrayed bis trust, and sought to 

return rebels, whom the valor of our armies bad subdued, again into power, are 
not those reasons, not only why Mr. Stanton should not desert his post, but, as 
a true patriot, maintain it all the more lirmly against this unlooked-for treachery 1 

Is it rot known to you, Senators, anil to the country, that M r. Stanton retains 
this Unpleasant and distasteful position, not of his own will alone, but at the 
behest of a majority of those who represent the people of this country in both 
houses of its legislature, and after the solemn decision of the senate that any 
attempt to remove him without their concurrence 18 unconstitutional and 
unlawful I 

To desert it mow, therefore, would be to imitate tin-; treachery of his acci- 
dental Chief. Hut whatever may be the construction of the "tenure of civil office 
act" by others, or as regards others, Andrew Johnson, the respondent, is con- 
eluded upon it. 

lie permitted Mr. Stanton to exercise the duties of bis office in spite of it, if 
that office were affected by it. He suspended him under its provisions; he 
reported that suspension to the Senate, with his reasons therefor in accordance 
with its provisions; and the Senate, acting under it, declined to concur with him, 
whereby Mr. Stanton was reinstated. In the well-known language of the law, 
is not the respondent estopped by his solemn official acts from denying the 
legality and constitutional propriety of Mr. Stanton's position? 

Before proceeding further, I desire most earnestly to bring to the attention of 
the Senate the averments of the President in his answer, by which he justifies 
his action in attempting to remove Mr. Stanton, and the reasons which con- 
trolled him in so doing. He claims that on the 12th day of August last he had 
become fully of the opinion that he had the power to remove Mr. Stanton or 
any other executive officer, or suspend him from office and to appoint any other 
person to act instead "indefinitely and at his pleasure;" that he was fully 
advised and believed, as he still believes, that the tenure of civil office act was 
unconstitutional, inoperative, and void in all its provisions ; and that he had then 
determined at all hazards, if Stanton could not be otherwise got rid of, to remove 
him from office in spite of the provisions of that act and the action of the Senate 
under it, if for no other purpose, in order to raise for a judicial decision the ques- 
tion affecting the lawful right of said Stanton to persist in refusing to quit the 
office. 

Thus it appears that with full intent to resist the power of the Senate, to hold 
the tenure of office act void, and to exercise this illimitable power claimed by 
him, he did suspend Mr. Stanton, apparently in accordance with the provi- 
sions of tli»' act; he did send the message to the Senate within the time pre- 
scribed by the act ; he did give his reasons for the suspension to the Senate, and 
argued them at length, accompanied by what be claimed to be the evidence of the 
official misconduct of Mr. Stanton, and thus invoked the action of the Senate 
to assist him in displacing a high officer of the government under the provisions 
of an act which be at that very moment believed to be unconstitutional, inope- 
rative and void, thereby showing that he was willing to make use of a void 
act and the Senate of the United States as his tools, to do that which he 
believed neither had any constitutional power to do. Did not" every member 
of the Senate, when that me me in announcing the suspension of Mr. 

Stanton, understand and believe thai the President was acting in this case as 
he had done in every other case under the provisions of this Did not 

both sides discuss the question under its provisions i Would any Senator upon 
this floor, on either Bide, so demean hims< If as to consider the question one moment 
if he had known it was then within the intent and purpose of the President of 



20 

the United Stal ; the deliberations and action of the Senate as void 

and of non-effecl it' its decision did not comport with his views ami pur- 
: and yet, while acknowledging the intent was in his mind to hold aa 
naught the judgment of the Senate if it did nol concur with his own, and 
remove Mr. Stanton Mt all hazards, and as 1 charge it upon him here, as . 
fact no man can doubt, with the full knowledge also that the Senate under- 
stood that be was acting under the provisions of the tenure-of-office act, 
t^ t 111 thus deceiving them, when called to answer for a violation of that 
act in his solemn answer he makes the sbameli SB avowal that he did 
transmit to the Senate of the United States a ■ ge wherein he made 

known the orders aforesaid and the reasons which induced the Bame 
as the respondent then considered it material and necessary that the same 
should he Bel forth." True i: i~. there IS not one word, one letter, one implication in 
that message that the President was not acting in good faith under the tenure- 
act and desiring the Senate to do the sain.-. S<> the President of the 
United States, with a determination to assert at all hazards the tremendous power 
of removal of everj officer, without the consent of the Senate, did not deem it 
; i il or necessary " that the Senate should know that he had suspended M i . 
Stanton indefinitely against the provisions of the tenure-of-office act. with full 
intent at all hazards to remove him, and that the solemn deliberations of the 
, which the President of the United States was then calling upon them to 
make in a matter of tiie highest governmental concern, were only to he of use 
they suited his purposes ; that itwasnot " material or necessary " for the 
Seuate to know that its high decision was futile and useless; that the President 
was playing fast and loose with this branch of the government, which was never 
before done save by himself. 

It' Andrew Johnson never committed any other offence — if we knew nothing 
of him Bave from this avowal — we Bhould have a full picture of his mind and 
he.ut. painted in colors of living light, so that no man will ever mistake his 
tal and moral lineaments hereafter, 
[nstead of open and frank dealing, as becomes the head of a greal govern- 
in every relation of life, and especially needful from the highest executive 
vernment to the highest legislative branch thereof j instead of a 
manly. straightforward bearing, olaiming openly and distinctly the rights which. 
he believed pertained to his high office, and yielding to the other branches, 
fairly and justly, those which belong to them, we find him, upon his own written 
confession, keeping hack his claims of power, concealing his motives, covering 
his put emptingby indirection and subterfuge to do that as the ruler oi 

tion which, if it he done at all, should have been done hohlly, in the 
■ 'lay: ami upon this position he must stand before the Senate and the 
country if they believe his answer, which 1 do not, that be had at that time 
b in his mind, and they are not the Bubterfuge and 
U and after-tUOUght which a criminal brought to hay makes to escape the 
acts. 
: you for lime in which to make his answer. You gavi 
him t< tnswerhi mal es! If be could do this in ten days, 

hould we have had if you had given bimforty I "ton shew him amercy 
in not time i ii" ansvi er. 

! ' i ation of the legality of the action of the respond- 

ent in removing Mr. Stanton from office in the manner and form and with the 

intent an! purpose with which it lias been done, let ns now examine thi 

appoint G Lorenzo Thomas, of the United States 

at my, i War mi inu 

I nine that it :- m.t denied in any quarter that thisc/</ interim appointment 

to this office i- the mere creature of law, and if justified at all, is to he so under 

1 Indeed, the respondent in his answer says that in the 



21 

appointment of General Grant ad interim be acted under the acl of February 
13, 1795, and subject to its limitation- By the acl of August "/, 1789, creating 
the Department of War, (1st Statutes ;it Large, pa^i- 49,) "in case "I any 
vacancy" do provision is made for any appointment of an acting or ad interim 
Secretary. In that case the record a and papers are to 1"' turned over for 
keeping to the custody of the chief clerk. Phis apparent omission to provide 
.hi executive emergency was attempted to be remedied by Congress by the 
act of May S, 1 "> '. »•.', ( 1st Statutes, 2M,) which provides "that in case oft he death, 

X nee from the seat of government, or sickness of the Secretary of State, Sec- 
retary of the Treasury, or of the Secretary of the War Department, or of any 
officer of either of the said departments whose appointmenl is not in the head 
thereof, whereby they cannot perform the duties of their respective offices, it shall 
he lawful for the President of the United States, in case he shall think it ne 
sary, to authorize any person or persons, at his discretion, to perform the duties 

the .-aid respective offices until a successor be appointed, or until such absi 
or inability by sickness shall cease." 

It will be observed that this act provides for vacancies by death, absence, or 
sickness only, whereby the head of a department or any officer in it cannot per- 
form Ins duty, hut makes no provision for vacancy by removal. 

Two difficulties were found in that provision of law : fust, that it provided 
only lor certain enumerated vacancies; and also, it authorized the President to 
make an acting- appointment of any person for any length of tine-. To meet 
these difficulties the act of 13th February, 179-3, was passed, (1st Stat, at Large, 
415,) which provides •' in case of vacancy, whereby the Secretaries or any officer 
in any of the departments cannot perform the duties of his office, the President 
may appoint any person to perform the duties for a period not exceeding six 
months." 

Thus the- law stood as to acting appointments in all of the departments, (except 
the Navy and Interior, which had no provision for any person to act in place of 
the Secretary.) until the 19th of February, 1SG3, when, by the second section 
of an act approved at that date, (12th Stat., CU6,) it was "provided that no person 
acting or assuming to act as a civil, military, or naval officer shall have any 
money paid to him as salary in any office which is not authorized by some pre- 
viously existing law." The state of the law upon this subject at that point of 
time is thus : In case of death, absence, or sickness, or of any vacancy whereby 
a Secretary or other officer of the State, War, or Treasury Department could 
not perform the duties of the office, any person could be authorized by the Pres- 
ident to perform those duties for the space of six months. 

For the Departments of the Interior and the Navy provision had been made 
for the appointment of an Assistant Secretary, but no provision in case of 
vacancy in his office, and a restriction put upon any officers acting when not 
authorized by law, from receiving any salary whatever. 

To meet those omissions and to meet the case of resignation of any officer of 
an executive department, and also to meet what was found to be a defect in 
allowing the President to appoint any person to those high offices for the space 
of six months, whether such person had any acquaintance with the duties of the 
department, or not, an act was passed February 20, 1SG3, (12 Stat., p. 656,) 
which provides, that in case of the death, resignation, absence from the seat of 
government, or sickness of the head of an executive department of the govern- 
ment, or of any officer of either of the said departments whose appointment is 
not in the head thereof, whereby the)/ cannot perform the duties of their respect- 
ive offices, it shall be lawful for the President of the Dnited States, in case he 
shall think it necessary, to authorize the head of any other executive depart- 
ment or other officer in either of said departments whose appointment i- vested 
in the President, at his discretion to perform the duties of the said respective 
offices until a successor be appointed, or until such absence or inability shall cease. 



22 

Therefore, in case of the death, resignation, sickness, or absence of a head of an 
Executive department, whereby 1 1 » « - incumbent conld not perform the duties of 
his office, the Presidenl might authorize the head of another Executive depart- 
ment to perform the duties of the vacant office, and in ease of like disability of 
any officer of an Executive department other than the head, the President might 
authorize an officer of the same department to perform his duties for the space 

of BIX months. 

It is remarkable that in all these statutes, from 17S9 down, no provision is 
made for the case of a removal, or thai anybody is empowered to act for the 
removed officer, the chief clerk being empowered to take charge of the books and 
papers only. 

Does not this series of acts conclusively demonstrate a legislative construc- 
tion of the Constitution thai there could be mo removal of the chief of an exec- 
utive department by the act of the Presidenl Bave by the nomination and 
appointment of bis Buccessor, if the Senate were in session, or a qualified 
appointment till the end of the nexl Bession if the vacancy happened or was 
made in recesa I 

Let us now apply this state of the law to the appointment of Major General 
Thomas Si cretary of War <id interim by Executive order. Mr. Stanton had 
neither died nor resigned, was not sick nor absent. If lie had been, under 
the act of March 3, 1.863, which repeals all inconsistent acts, the President wa? 
authorized only to appoint the head of another Executive department to 
till his place ad interim. Such was not General Thomas. Tie was simply an 
officer of the army, the head of a bureau or department of the War Department, 
and nut eligible under the law to be appointed. So that his appointment was 
an illegal and void act. 

There have been two cases of ad interim appointments which illustrate and 
confirm this position ; the one was the appointment of Lieutenant General Scott 
tary of War ad, interim, and the other the appointment of General Grant 
ad interim upon the suspension of Mr. Stanton, in August last. 

The appointment of General Scott was legal because that was done before the 
restraining act of March 2, 1S63, which requires the detail of the head of another 
department to act ad interim. 

The appointment of General Grant to take the place of Mr. Stanton during 
his suspension would have been illegal under the acts I have cited, he being 
an officer of the army and not the head of a department, if it had not been 
authorized by the 2d section of the " tenure-of-civil-office act," which pro- 
vides that in case of suspension, and no other, the President may designate 
me Buitable person to perform temporarily the duties of such office until the 
• meeting of the Senate." Now, General Grant was such "suitable person," 
and was properly enough appointed under that provision. 

answers one ground of the defence which is taken by the Presidenl that 
he did not Buspend Mr. Stanton under the " tenure-of-office act," bul by his 
ra] power of suspension and removal of an officer. If the 1 'resident did 
uspend Stanton under the tenun., ('office act, because he deemed it uncon- 
stitutional and void, then there was no law authorizing him to appoint Gen- 
eral Grant, and thai appointment was unauthorized by law and a violation of 
itfa of office. 

be tenure-of-civil-office bill by its express terms forbids any employ- 
men^ authorization, or appointment of any person in civil office where to 
appointmenl is by and with the advice and consenl of the Senate, while the 
itc i • in ■ ion. If ihi act i- constitutional, i. e., if il is no1 bo far in con- 
flict with the paramount law of the land as to be inoperative and void, then the 
removal of Mr. Stanton and the appointment ol General Thomas are both 
direct violation ol it, and are declared by it to be high misdemeanors. 

The intent with which the Presidenl has done this is nol doubtful, nor arc 



23 

we obliged to rely upon the principle of law that a man most be held t'> intend 
the legal consequences of ''ill bis arts. 

The President admits that he intended to set aside the tenure-of-office 
and thus contravene the Constitution, if that law was unconstitutional. 

Having shown that the President wilfully violated an act of Congress, with- 
out justification, both in the removal of Stanton and the appointment of 
Thomas, for the purpose of obtaining wrongfully the possession of the War 
Office hy force, it' need be, and certainly by threats and intimidations, for thi 
purpose of controlling its appropriations through its ad interim chief, who 
shall say that Andrew Johnson is not guilty <>f the high crime and misde- 
meanors charged against him in the first eight articles? 

1'h ■ respondent makes answer to this view, that, the, President, believing this 
civil tenure law to be unconstitutional, had aright to violate it, for the purpo.se 
of bringing the matter before the Supreme Court for its adjudication. 

We are obliged, in limine to ask the attention of the Senate to this consider- 
ation, that they may take it with them as our case goes forward. 

We claim that the question of the constitutionality of any law of Congress i-, 
upon this trial, a totally irrelevant one; because all the power or right in the 
President to judge upon any supposed conilict of an act of Congress with the 
paramount law of the Constitution is exhausted when he has examined a bill 
Bent him and returned it with his objections. If then passed over his veto it 
becomes as valid as if in fact signed by him. 

The Constitution has provided three methods, all equally potent, by which a 
bill brought into either house may become a law : 

1st. P»y passage by vote of both houses, in due form, with the President's 
signature ; 

2d. By passage by vote of both houses, in due form, and the President's 
neglect to return it within ten days with his objections ; 

3d. By passage by vote of both houses, in due form, a veto by the President, 
a reconsideration by both houses, and a passage by two-thirds votes. 

The Constitution substitutes this reconsideration and passage as an equivalent 
to the President's signature. After that, he and all other officers must execute 
the law, whether in fact constitutional or not. 

For the President to refuse to execute a law duly passed, because he thought 
it unconstitutional, after he had vetoed it for that reason, would, in effect, be 
for him to execute his veto and leave the law unexecuted. 

It may be said he may do thi.s at his ])cri/. True; but that peril is, to be 
impeached for violating his oath of office, as is now being done. 

ii\ indeed, laws duly passed by Congress affecting generally the welfare of 
any considerable portion of the people had been commonly, or as a usage 
declared by the Supreme Court unconstitutional, and therefore inoperative, 
there might seem to be some palliation if not justification to the Executive to 
refuse to execute a law in order to have its constitutionality tested by the court. 

It is possible to conceive of so flagrant a case of unconstitutionality as to be 
such shadow of justification to the Executive, provided one at the same time 
conceives an equally flagrant case of stupidity, ignorance, and imbecility, or 
worse, in the representatives of the people and in the Senate of the United 
States ; but both conceptions are so rarely possible and absurd as not to furnish 
a ground of governmental action. 

How stands the fact? Has the Supreme Court so frequently declared the 
laws of Congress in conflict with the Constitution as to afford the President just 
ground for belief, or hope even, that the court will do BO in a given instan ! • 
1 think I may safely assert as a legal fact, that since the first decision of the 
Supreme Court till the day of this arraignment no law pissed by C • 
affecting the general welfare has ever, by the judgment of that court, be 
aside or held for naught because of unconstitutionality as the ground-worK of 
its decision. 



24 

In ii.. only baa the judgment of that court been influenced by the 

supposed conflict between the law and the Constitution, and they were cases 
iting the court itself and its own duties, and where the law sinned to inter- 
n-ii prerogati\ i 
Touching privileges and prerogatives have been the Bhipwreck of many a 
wholesome law. It is the sore Bpot, the sensitive nerve of all tribunals) parlia- 
mentary or judicial. 

The first case questioning the validity of a law of Congress is Hayburn's, 

. D UaSi 109,) where the court decided upon the unconstitutionality of 

the act of March 23, l 792, Statutes at Large, vol. 1. p. 244, which conferred 

upon the court the power to decide upon and granl certificates of invalid pen- 

The court held that Buch power could not he conferred upon the court 

.is an original jurisdiction, the court receiving all its original jurisdiction from 

the provisions of the Constitution. This decision would he nearly unintelligible 

were it not explained in a note to the case in United States rx. \\ rreira, (13 

Howard, p. 52,) reporting United States vs. Todd, decided February J7, 1794. 

We learn, however, from both cases the cause of this unintelligibility of the 

in Hayburn's case. When the same question came up at the circuit 

court in New York, the judges being of opinion that the law could not be 

ited by them as judges, because it was unconstitutional, yet determined to 

obey it until the case could be adjudicated by the whole court. They there- 

. not to violate the law, did execute it as commissioners until it was repealed, 

winch Mas done the next year. 

The judges on the circuit in Pennsylvania all united in a letter to the Execu- 

most humbly apologizing, with great regret, that their convictions of duty 

did not permit them to execute the law according to its terms, and took special 

care that this letter should accompany their decision, so that they might not be 

misunderstood. 

iJoth examples it would have been well for this respondent to have followed 
before he undertook to set himself to violate an act of Congress. 

The next case where the court decided upon any conflict between the Consti- 
tution and the law is Cordon VS. United States, tried in April, 1S65, seventy- 
years afterwards, two justices dissenting, without any opinion being 
red by the court. 
The cuirt here dismissed an appeal from the Court of Claims, alleging that, 
under the Constitution, no appellate jurisdiction could be exercised over the 
t of Claims under an act of Congress which gave revisory power to the 
retary of the Treasury over a decision of the Court of Claims. This 
on i- little satisfactory, as it is wholly without argument or authority cited. 
'I'll'- is ex parte Garland, (4 Wallace, 333,) known as the Attorney's 

Oath case — where the court decided that an attorney was not an officer of the 
I i.ii' d Btati B, and therefore might practice before that court without taking the 
ith. 
'1 he reasoning of the court in that case would throw doubt on the constitu- 
tionality of the law of Congress, hut the decision of the invalidity of the law 
iary to the decision of the case, which did not command a unan- 
imity in the court, BS it certainly did not the assent of the bar. 

• • it will he observed that the court made a rule requiring the 

to be administered to the attorneys in obedience of the law until it came 

before them in a cause duly brought up lor decision, The Supreme Court 

■ d the law up to the time it was Bel aside. They did not violate it to make 

imple to this respondent, as to his duty in the case, which 
.11 wi-h he bad followed, 1 may venture to Bay, when he hears the judg- 
ol tin- Si uate upon the impeachment now pending. 
There are several other cases wherein the validity of acts of Congress have 



•J;> 

>nssed before the Supreme < lourt, bftl aone v, lure the decision ha i I nrned 
on that point. 

In Rfarbury vs. Madison, (] ranch, IS7,) Ohief Justice Marshall disra 
the ease for want of jurisdiction, but took opportunity to deliver o chiding opinion 
insl the administration of Jefferson before he did bo. 

lu the Dred Scott case, so familiar to the public, the court decided it had 
no jurisdiction, hut gave the government and toe people a lecture upon their 
political duties. 

In the ease of Fisher vs. Blight, (2 ranch, 358,) the constitutionality of a law 

•> i iv much diseussed, but was held valid by the decision of 1 1 1 < - court. 
In United States w. Coombs, (12 Peters, 'r>.) although tin- power to declare a 
law of Congress in conflict with the Constitution was claimed in the opinion of 

ait arguendo, yet the law itself was sustained. 

The case of Pollard vs. Hagan, (3 Howard, 212,) and the two cases, Goodtitle 
os. Kildie, (!) Howard, 271 ;) Halle tt vs. Beebe, 13 Howard, 25,) growing out of 
the Bame controversy, have been thought to impugn the validity of two private 
acts of Congress, but a careful examination will show that it was the operation 
and not the validity of the acts which came in question and made the basis of 

the decision. 

Thus it will be seen that the Supreme Court, in three instances only, have 
apparently by its decision impugned the validity of an act of Congress because 
of a conflict with the Constitution, and in each case a question of the rights 
and prerogatives of the court or its officers has been in controversy. 

The cases where the constitutionality of an act of Congress has been doubted 
in the ohitcr dicta of the court, but were not the basis of decisiont are open t<> 
other criticisms. 

In Marbury vs. Madison, Chief Justice Marshall had just been serving as 
Secretary of State in an opposing administration to the one whose acts he' was 
trying to overturn as Chief Justice. 

In the Dred Scott case, Chief Justice Taney — selected by General Jackson 
to remove the deposits, because his bitter partisanship would carry him through 
where Duane halted and was removed — delivered the opinion of the court, whose 
obiter dicta fanned the flame of dissension which led to the civil war through 
which the people have just passed, and against that opinion the judgment of 
the country has long been recorded. 

When ex jjarlc Garland was decided, the country was just emerging from a 
conflict of arms, the passions and excitement of which had found their way 
upon the bench, and some of the judges, just coming from other service of 
the government and from the bar, brought with them opinions — But I forbear. 
I am treading on dangerous ground. Time has not yet laid its softening and 
correcting hand long enough upon this decision to allow me further to comment 
upon it in this presence. 

Mr. President and Senators, can it be said that the possible doubts thrown on 
three or four acts of Congress, as to their constitutionality, during a judicial 
experience of seventy-five years — hardly one to a generation — is a sufficient 
warrant to the President of the United States to set aside and violate any act 
of Congress whatever, upon the plea that he believed the Supreme Court would 
hold it unconstitutional when a case involving the question should come before 
it, and especially one much discussed on its passage, to which the whole mind 
of the country was turned during the progress of the discussion, upon which. 
he had argued with all his power his constitutional objections, and which, after 
careful reconsideration, had been passed over his veto. 

Indeed, will you hear an argument as a Senate of the United States, a majori- 
ty of whom voted for that very bill, upon its constitutionality in the trial of an 
executive officer for wilfully violating it before it had been doubted by any 
court ? 



26 

ring upon tlii.-' question, however, i: may be said that the President 
removed Mi. Stanton for the very purpose of beating the constitutionality of 
•hi« law before the courts, ami the qu< stion i- asked, Will you condemn him as 
for ■ crime for bo doingl It' this plea were a true one it ought not to avail: 
but it i- a subterfuge. We shall Bhow you that be baa taken no step to sub- 
mit the question to any court, although more than a year baa elapsed since the 
: the act 
i m the contrary, the President has recognized its validity and acted upou it in 
ry department of the government, save in ihe War Department, and there 
• Kcept in regard i" the head thereof solely. We shall show you he long ago 
caused all the forma of commissions and official bonds of all the civil officers of 
the government to he altered to conform to its requirement Indeed, the fact 
will nut he denied — nay, iii the very case <»f Mr. Stanton, he suspended him under 
- provisions, and asked this very Senate, before whom he is now being tried 
for its violation, t . • pass upon the sufficiency of his reasons for acting under it in 
-o doing according to its terms; yet, rendered reckless and mad by the patience 
1 under bis usurpation of oilier powers, and his disregard of other 

taws, he boldly avOWS in his letter to the general of the army that he intends 
lisregard its previsions, and summons the commander of the troops of this 
department to seduce him from his duty so as to he aide to command, in viola- 
tion of another act of Congress, Bufficient military power to enforce his unwar- 
ranted deci 

The President knew, or ought to have known ; his official adviser, who now 
appears as his counsel, could, and did tell him, doubtless, that he alone, as 
Attorney General, could tile an information in the nature of a quo warranto to 
determine this question of the validity of the law. 

Mr. Stanton, if ejected from office, was without remedy, because a Beri 
lions has settled the law to be that an ejected officer can not reinstate him- 
:• by quo warranto, mandamus, or other appropriate remedy in the 
courts. 

[fthe President had really desired solely to test the constitutionality of the 
law or his legal right to remove Mr. Stanton, instead of his defiant message to 
the Senate of the 21st ol February, informing them of the removal, but not 
gesting this purpose which i- thus shown to be an afterthought, he would 
have .-aid, in substance: "Gentlemen ( f the Senate, in order to test the consti- 
inality of the law entitled -An act regulating the tenure of certain civil 
"thee-,' which 1 verily believe to lie unconstitutional and void, 1 have issued an 
order of removal of i;. M. Stanton from the office of Secretary of the Depart- 
ment ..i War 1 felt myself constrained to make this removal lest Mr. Stanton 
should answer the information in the nature of a quo warranto, which 1 intend 
1 ral -hall file at an early day, by saying that he holds the 

War by the appointment ami authority of Mr. Lincoln. 
which ha- ie \.-r L-.-n revoked. Anxious that tlere shall be no collision or dis- 

thi everal departments of the government and the Execu- 
tive, I lav before tie- Senate this message, thai the reasons for my action, as 
well a- the action itself, for the purpose indicated, may meet your concurrence." 

Had the Sen .'d Buch a message, the representatives of the ] pie 

ini^ht never have deemed it necessary to impeach the Preaidenl for such an 

;he country, even if they had denied the accuracy 
of hi- legal ]' 

• in tie- contrary, be issued a letter of removal, peremptory in form, intended 

d an oilier of die army. Lorenzo Thomas, to take pos- 

n ■' I a i and eject the incumbent which he claimed he would do by 
' at tie risk of inaugurating insurrection, civil commotion and war. 
Whatever may I." the decision of the legal question involved when the cas 
fore tie- final judicial tribunal, who shall say thai Buch conduct of the 



27 

Executive under the circumstances, and in 1 1 1 < - light of the history of current 
events anil his concomitant action, is not hi Andrew .Johnson a high crime and 
misdemeanor? Imagine, if it were possible; the consequence of a decision by 

the Senate in the negative — a verdict of not guilty upon this proposition. 

A law is deliberately passed with all the form of legislative procedure, is pre- 
sented to the President for his signature, is returned by him to Congress with hi 
objections, is thereupon reconsidered, and by a yea and nay vote of three-qnar- 
ters of the representatives of the people in the popular branch, and three-fourths 
of the senators representing the States iii the higher branch, is passed again, 
notwithstanding the veto; is acquiesced in by the President, by all departments 
of the government conforming thereto for quite a year, no court having douhted 
its validity. Now its provisions are wilfully and designedly violated by the 
President with intent to usurp to himself the very powers which the law was 
designed to limit, for the purpose of displacing a meritorious officer whom the 
Senate just before had determined ought not and should not be removed ; for 
which high-handed act the President is impeached in the name of all the people 
of the United States, by three-fourths of the House of Representatives, and 
presented at the bar of the Senate, and hy the same Senate that passed the lav 
nay, more, by the very senators who. when the proceedingcametotheir knowledge, 
after a redeliberation of many hours, solemnly declared the act unlawful and in 
violation of the Constitution ; that act of usurpation is declared not to be a 
high misdemeanor in office by their solemn verdict of not guilty upon their 
oaths. 

Would not such a judgment be a conscious self-abnegation of the intelligent 
capacity of the representatives of the people in Congress assembled to frame 
laws for their guidance in accordance with the principles and terms of their 
Constitution and frame of their government 1 

Would it not be a notification— an invitation rather — standing to all time to 
any bold, bad, aspiring man to seize the liberties of the people which they had 
shown themselves incapable of maintaining or defending, and playing the role 
of a Cresar or Napoleon here to establish a despotism, while this the last and 
greatest experiment of freedom and equality of right .in the people, following 
the long line of buried republics, sinks to its tomb under the blows of usurped 
power from which free representative government shall arise to the light pt a 
morn of resurrection never more, never more force* r ! 

Article ninth charges that Major General Emory being in command of tin- 
military department of Washington, the President, called him before him and 
instructed him that the act of March :i, lS(i7, which provides that all orders 
from the President shall be issued through the General of the army, was uncon- 
stitutional and inconsistent with his commission, with intent to induce Emory 
to take orders directly from himself, and thus hinder the execution of the civil 
tenure act and to prevent Mr. Stanton from holding his office of Secretary of 
War. 

If the transaction set forth in this article stood alone we might welt admit 
that doubts might arise; as to the sufficiency of the proof. But the surroundings 
are so pointed and significant as to leave no doubt on the mind of an impartial 
man as to the intents and purposes of the President. No one would say that 
the President might not properly send to the commander of this department to 
make inquiry as to the disposition of his forces, but the question is with what 
intent and purpose did the President send for General Emory at the time he did i 
Time, here, is an important element of the act. 

Congress had passed an act in March, 1SG7. restraining the President from 
issuing military orders save through the General of the army. The Presi 
had protested "against that act. On the 12th of August, he had attempted to 
get possession of the War Office by the removal of the incumbent, but could 
only do so by appointing the General of the army thereto. Failing m hi- 



28 

to get lull pot : the office through tin- Senate, he had deter- 

- he admits, to remove Stanton at .ill hazards, and endeavored to 
vail on tin- General t" aid him in bo doing. He declines. For that, the 
ndent qnarrele with bim, denounceB him in the newspapers, and accuses 
him ill and nn truth fulness. Thereupon, asserting his prerogatives as 

imander-in-chief, In- creates a new military department of the Atlantic. He 
mpts to bribe Lieutenanl General Sherman to take command <>t' it, by pro- 
motion to the rank of general by brevet, trusting thai his military services would 
compel tin- Sri: linn him. 

If the respondent can gel a general by brevet appointed, he can then l>y sim- 
ple order put him on duty according to Ids brevet rank and thus have a General 
the army in command at Washington, through whom he cau transmit Ids 
rs and comply with the act which be did uol dare transgress, as he had 
ipproved it, and get rid of the hated < reneral Grant. Sherman spurni d the bribe. 
The respondent, not discouraged, appointed Major General George H. Thomas 
rank, but Thomas declined. 
What stimulated the ardor of the President just at thai time, almost three 
: after the war closed, but just after the Senate had reinstated Stanton, to 
ard military Bervice by the appointment id' generals by brevet / Why did 
bis zeal of promotion take that form and no other ! There were many other 
meritorious officers of lower rank desirous ofpromotion. The purpose is evident 
eery thinking mind. lie had determined to set aside Grant, with whom lie 
bad quarrelled, either by force or fraud, either in conformity with or in spite of 
the act of Congress, and control the military power of the country. On the 
■ oi February (for all these events cluster nearly about the Same point of 
appoints Lorenzo Thomas Secretary of War and orders Stanton out of 
the office ; Stanton refuses to go ; Thomas is about the streets declaring- that he 
will put him out by force, "kick him out" — he has caught bis master's word. 
the evening of the 21st a resolution looking to impeachment is o tiered in 
the Hi 

The President, on the morning of the 22d, "as early as practicable," is seized 

with a sudden desire to know how many troops there were in Washington. 

What for, JUSI then? Was that all he wanted to know ? [f BO, his Adjutant 

tend could have given him the official morning report, which would have 

■ii the condition and station of every man. But that was not all. He 

directs the commander of the department to come as early as practicable. Why 

"his baste to learn the number of troops .' ( Ibserve, the order does not go 

through General Grant, as by law it ought to have done. General Kmory not 

wing what is wanted, of course obeyed the order as soon as possible. The 

President asked him if he remt mbered the conversation which he had with him 
when he first took command of the department as to the strength of the garrison of 
hington, and the general disposition of troops in the department. Kmory 
replied that "he did distinctly;" that was last September. Then, after explain- 
to him folly as to all the changes, the President asked for recent changes of 
"•roc; nied they could have been made without the order going 

through him, and then, with soldierly frankness, (as he evidently suspected \\ hat 
tdent was after,) said by law no order could come to bim save 
through the < reneral of the army, and that had been approved by the President 
and promulgated in a General Order, No, 17. The President wished tp see it. 
[| wai produced. General Emory .-ays. •• .Mr. President, I will take it as a 
for if you will permit me to call your attention to this order or act." 
Why a favor to Bmory ' Because he feared that he was to be called upon by 
dent to do something in contravention of that law. The President 
• ad it and said. "This i< not in accordance with the ( '(institution of the United 
Inch makes m< Commander-in-chief of the army and navy, or with 
the language of mission." Bmory then said, "That is not a matter 



for the officers to determine. There was the order senl to ai approved by him. 
and we were all governed l>y that order." 

Hi' said, "Am 1 to understand, then, that the President of the United B 
cannot give an order ba1 through General Grant?" Ganeral Emory then made 
the President a short speech, telling him thai the officers of the army bad been 
consulting lawyers <>n the Bubject, Reverdy Johnson and Robert J. Walker, ann 
were advised they were bound to obey that order. Said he, " I think it. righl 
to tell you the army are a unit on this subject." After r Bhorl pause, " seeia - 
there was nothing more to say," General Emory I'M. Whai made all the offi- 
cers consult lawyers about obeying a law of the United States? What influ- 
ence had been at. work with them? The course id' the President. In his mes- 
sage to Congress in December In' had declared that tin- time might conic when 
he would resist a law of Congress by force J low could General Emory tell 
that in the judgment of the Presidenl that time hail not come, and henee was 
anxious to assure the President that he could not oppose the law ? 

In his answer to the first article he asserts that he had fully come to the con- 
elusion to remove Mr. Stanton at all events, notwithstanding the law and the 
action of the Senate; in other words, he intended to make, and did make, execu- 
tive resistance to tin? law duly enacted. The consequences of such resist 
he has told us in his message: 

Where an act has been passed according to the forms of the Constitution by the supreme 

legislative authority, and is regularly enrolled among the public statutes of the country, 
executive resistance to it, especially in times of lii;. r h party excitement, would be tiftely to 
produce violent collision between the respective adherents of the two branches of the govern- 
ment. This would be simply civil war, and civil war must be resorted to only as tin 
remedy for the worst evils. 

' ■* » * # # M » 

It is true that cases may occur in which the Executive would be compelled to stand on its 
rights, and maintain them, regardless of all consequences. 

He admits, in substance, that he told Emory that the law was wholly uncon- 
stitutional, and, in effect, took away all his power as Commander-in-chief. "Was 
it not just such a law as he had declared he would resist 1 Do you not be! 
that if General Emory had yielded in the least to his suggestions the President 
would have offered him promotion to bind him to his purposes, as he did Sherman 
and Thomas ? 

Pray remember that this is not the case of one gentleman conversing with 
another on moot questions of law; but it is the President, the Commander-in- 
chief, " the fountain of all honor and source of all power ! " in the eye of a military 
officer, teaching that officer to disobey a law which he himself has determined 
is void, with the power to promote the officer if he finds him an apt pupil. 

Is it not a high misdemeanor for the President to assume to instruct th 
cers of the army that the laws of Congress are not to be obeyed? 

Article ten alleges that, intending to set aside the rightful authority and pow- 
ers of Congress, and to bring into disgrace and contempt the Congress of tie- 
United States, and to destroy confidence in and to excite odium against Congress 
and its laws, he. Andrew Johnson, President of the United States, made divers 
speeches set out therein, whereby he brought the office of President into con- 
tempt, ridicule, and disgrace. 

To sustain these charges, there will be put in evidence the short-hand rj >| - 
of reporters in each instance, who took these speeches, or examined the ,-v 
copies thereof, and one instance where the speech was examined and corrected 
by the private secretary of the President himself. 

To the charges of this article the respondent answers that a convent : 
delegates, of whom he does not say, sat in Philadelphia for certain political pur- 
poses mentioned, and appointed a committee to wait upon the respondei 
President of the United States; that they were received, and by their chairman. 



30 

Hon Eteverdy Johnson, then and now a Benatoi oi the United States, 
addressed the respondent in a Bpeeoh, a copy of which the respondent belii 
from a .<ulist.iuii.illy correcl report, is made a part of the answer; that the 
ondenl made a reply t" the address of the committee. While, however, he 
.'. er ,i copy of the speech made to him by Mr. Eteverdy John- 
son, taken from a newspaper, he wholly omits to give as an authorized version 
if his own Bpeech, aboul which be may be supposed to know quite as much, and 
- saved as Borne testimony. He dpes not admit that the extracts from his 
Bpeech in the article are correct, nor does he deny that they are 60. 

lu regard to the Bpeech al Cleveland, he, again, does not admit that the 
extracts correctly or justly present his speech ; but, again, he docs not deny 
thai it do,s so rax as the same is sel out. 

As to the speech at St. Louis, he does not deny that he made it — says only 
that he does not admit it, and requires, in each case, that the whole speech shall 
be proved. In that, 1 beg leave to assure him and the Senate, hi.s wishes shall 
gratified to their fullest fruition. The Senate shall sic the performance, so far 
in our power to photograph the scene by evidence, on each of these occa- 
Bions, and Bhall hear every material word thai he said. His defence, however, 
to the article is that "he felt himself in duty hound to express opinions of and 
concerning the public character, conduct, views, purposes, motives, and tenden- 
of all men engaged in the public service, aa well in Congress as otherwise," 
••and that for anything he may have said on either of these occasions he is jus- 
tified under the constitutional right of freedom of opinion and freedom of speech, 
aid is not subject to question, inquisition, impeachment, or inculpation in any 
manner or form whatsoever;" be denies, however, that by reason of any matter 
id article or its specifications alleged he has said or done anything indecent 
or unbecoming in the Chief Magistrate of the United States, or tending to bring 
high office into contempt, ridicule, or disgrace. 
The issue, then, finally, is this : that those utterances of his, in the manner 
and from in which they are alleged to have been made, and under the circum- 
stances and at the time they were made, are decent, and becoming the President 
he United Stab s and do not tend to bring the office into ridicule and dis- 

YVe accept the issues. They are two: 

First. That he has the right to say what he did of Congress in the exercise 
i f freedom of speech; and, econd, that what he did Bay in those speeches was 
.hly gentlemanlike and proper performance in a citizen, and still more 
ming i.u a President of the United Stat.'-. 

consider the graver matter id' the assertion of the righl to cast 

tamely apon Congress; to denounce it as a •• body hanging on the verge of 

the government ;" "pretending to he a Congress when in fact it was not a Con- 

" a Congress pretending to be for the Unionwhen its every step and act 

tended to perpetuate disunion," "and make a disrupt ion of the States inevitable;'' 

1 in a minority assuming to exerci.-c power which, if allowed to hi 

animated, would result in despotism and monarchy itself;" •• a Congress 
which had done everything to prevent the union of the States;' - "a Congress 
tnd d( mineering;" "a radical Congress, which gave origin to anothi 
- I B upon whose .-kirts was every drop of blood that ■ 

'i on n ill find th. ->■ di ounciations bad a deeper meaning than mere expressions 

taken as an axiom in the affairs of nations that no usurper 

.ii the legislature of his country until he has familiarized I 

people with the possibility of bo doing by vituperating and decrying it. 

upon the legislature have always preceded, slanderous 

i . th.- individuals composing it have alwi mpanied a seizure by a 



Two memorable examples in modem history will Bpring to the recollection of 
every man. Before Cromwell drove <>ut by the bayouel 1 1 • « - Parliamenl oi 
England, he and his partisans lia<l denounced it, derided it, decried it, and 
defamed it, and thus brought it into i i • i i c- 1 1 1 *? and contempt, lie vilified it with 

the same name which il is a significant fact lli«' partisans of .Johnson, by a COD 

ccrtcd cry, applied to the Congress of the United States when be commenced 
his memorable pilgrimage and crnsade against it. It is a still more significant 
fact that the justification made by Cromwell and l>y Johnson for Betting aside 
the authority of Parliament and Congress respectively was precisely i 1m- sain'', 
to wit : that they were elected by part of the people only. When Cromwell, 
by his soldiers, finally entered the hall of Parliament to disperse its members, 
he attempted to cover the enormity of his usurpation by denouncing this man 
personally as a libertine, that as a drunkard, another as the betrayer of the lib- 
erties of the people. Johnson started out on precisely the same course, bu| 
forgetting the parallel, too early he proclaims this patriot an assassin, that 
statesman a traitor;' threatens to hang that man whom the people delight 
to honor, and breathes out " threatenings and slaughter" against this man 
whose services in the cause of human freedom has made his name a household 
word wherever the language is spoken. There is, however, an appreciable dif- 
ference between Cromwell and Johnson, and there is a like difference in tin- 
results accomplished by each. 

When Bonaparte extinguished the legislature of France, he waited unti-1 
through his press and his partisans, and by his own denunciations, he brought 
its authority into disgrace and contempt ; and when, finally, he drove the council 
of the nation from their chamber, like Cromwell, he justified himself by personal 
abuse of the individuals themselves as they passed by him. 

That the attempt of Andrew Johnson to overthrow Congress has failed, is 
because of the want of ability and power, uot of malignity and will. 

We are too apt to overlook the danger which may come from words : " We 
are inclined to say that is only talk — wait till some act is done, and then it will 
be time to move. But words may be, and sometimes are, things — living, burn- 
ing things that set a world on fire." 

As a most notable instance of the power of words, look at the inception of the 
rebellion through which we have just passed. For a quarter of a century th • 
nation took no notice of the talk of disunion and secession which was heard in 
Congress and on the "stump" until in the South a generation was taught them 
by word, and the word suddenly burst forth into terrible, awful war. Does any 
one doubt that if Jackson had hanged Calhoun in \^:V2 for talking nullifica- 
tion and secession, which was embryo treason, the cannon of South Carolina 
against Fort Sumter would ever have been heard with all their fearful and 
deadly consequences? Nay, more; if the United States officers, senators and 
representatives had been impeached or disqualified from office in lS.'J^ for advo- 
cating secession on the "stump," as was done in L862 by Congress, then our 
sons and brothers, now dead in battle, or starved in prison, had been alive and 
happy, and a peaceful solution of the question of slavery had been found. 

Does any one doubt that if the intentions of the respondent could have 
carried out, and his denunciations had weakened the Congress in the affections 
of the people, so that those who hail in the North sympathized with the rebel- 
lion could have elected such a minority even, of the representatives to i 
as, together with those sent up from tie- governments organized by Johnson in 
the rebellious States, they should have to. med a majority of both or either bo 
of Congress, that the President would have recognized Buch body as the legiti- 
mate Congress, and attempted to carry out is decrees by the aid of tin- army and 
navy and the treasury of the United States, over which he now claim- such 
unheard-of and illimitable powers, and thus lighl d the torch of civil war \ 

In all earnestness, Senators, I call each one of you upon b 



32 

whether be doee nol believe by a preponderance of evidence drawn from the 
acts of the respondent Bince be has been in office, that it' the people bad not been, 
as they ever bave been, true and loyal to their Congress and themselves, such 
would not have been the result of these usurpations of power in the Executive i 
Is it, indeed, to be seriously argued here that there is a constitutional right in 
the I 'i> sidi nl of the I United States, \\ ho, during his official life, can never lay aside 
his official character, to denounce, malign, abuse, ridicule and contemn, openly 
and publicly, the Congress of the United State. — a co-ordinate branch of the 

: nun nt .' 

It cannot fail to be observed that the President (shall I dare to say his coun- 

or are they compelled by the exigencies of their defence,) bave deceived 

themselves as to the gravamen of the charge in this article? It dots not raise 

the question of freedom of speech, but of propriety and decency of speech and 

conduct in a high officer of the government. 

Andrew Johnson, the private citizen, as I may reverently hope and trust he 
soon will 1"'. lias the full constitutional right to think and Bpeak what he pleases, 
in the manner he pleases, and when' he pleases, provided always he docs not bring 
himself within the purview of the common law offences of being a common railer 
and brawler, or a common scold, which he may do, (if a male person is ever Liable 
to commit that crime ;) but the dignity of station, the proprieties of position, the 
courtesies of office, all of which are a part of the common law of the land, require 
the President of the United States to observe that gravity of deportment, that fit- 
ness of conduct, that appropriateness of demeanor, and those amenities of behavior 
which are a part of his high official functions. He stands before the youth of the 
country tin exemplar of all that is of worth in ambition, and all that is to be sought 
in aspiration; he stands before the men of the country as the grave magistral 
who occupii s. if he does not fill, the place once honored by Washington ; nay. 
far higher and of greater consequence, he -lands before the world as the repre- 
sentative of free institutions, as the type of man whom the Buffrages of a free 
people have chosen as their chief. lie should be the living evidence of how 
much better, higher, nobler, and more in the image of God, is the elected ruler 
of a free p ople than a hereditary monaich, coming into power by the accident 

birth; and when he disappoints all these hopes and all these expectations, 
and becomes the ribald, scurrilous blasphemer, bandying epithets and taunts 
with a jeering mob, .-hail he be heard to say th it Buch conduct is not a high 

demeanor in office? Nay, disappointing the liopes, causing the cheek 
urn with shame, exposing to the taunts and ridicule of every nation the 
name and fame of the chosen institutions of thirty millions of people, is it 
not the bij po Bible crime and misdemeanor in office? aud under the circum- 

stances is the gravamen of these charges. The words are not alleged to he either 
false or defamatory, because it is not within the power of any man, however high 
his official position, iu effect to slander the Congress of the United States, in the 
Ordinary Bense of that word, BO as to call on Congress to answer as to the truth 
; a. We do not go in, therefore, to any question of truth or falsity. 

We re8t upon tin- scandal of the B( me. We would as soon think, iu the trial of 

an indictment against a termagant as a common Bcold, of summoning witnes - 
prove thai what Bhe said was not true. It i- the noise and disturbance in 
tin- neighborhood that i- th.- offence, and not a question of the provocation or 
irritation which cause- theoutbreak. 

At the risk "I being aim"-', offensive, but protesting that if so it is not my 
tault but that of th I am describing, let me but faintly pic- 

ture t" yOU the .-ceie- a! Cleveland and St. bonis. 

It i- evening; the President of the United State.- mi a journey to do homage 

at the tomb of an illustrious state-man, accompanied by the head of the army 
and Davy and Secretary ol Stale, bas arrived in the great central city of the 

continent. He ha.- been welcomed by the civic authorities, lie has been 



33 

escorted by ;i procession of the benevolent charitable societies and citizens and 
Boldiers to his hotel. He has returned thanks in answer to address of the m i jror 
to the citizens who has received hira. The hospitality «>(' the city has provided 
a banquet fox him am! his suite, when he is again expected to address the ch i 
guests of the city where all tilings may be conducted in decency and in order. 
While he was resting, asonewould have supposed he would have wished to do from 
the fatigue of the day, a noiBy crowd of men and boys, washed and anwashed, 
drunk and sober, black and white assemble in the street, who make night 
hideous by their bawling; quitting the drawing room without the advice of his 
friends, the President of the United Slates rushes forth on to the balcony of the 
hotel to address what proves to have been a mob, and this he calls in his answer a 
" fit occasion on which he is held to the high duty of expressing opinions of and 
concerning the legislation of Congress, proposed or completed, in respect of its 
wisdom, expediency, justice, worthiness, objects, purposes, and public and 
political motives and tendencies." 

Observe now, upon this " fit occasion," like in all respect to that at 
Cleveland, when the President is called upon by the constitutional requirements 
of his office to expouud "the wisdom, expediency, justice, worthiness, obj 
purposes, and tendencies of the acts of Congress," wh:it he says, and the man- 
ner in which he says it. Does he speak with the gravity of a Marshall when 
expounding constitutional law ? Does he use the polished sentences of a Wirt ? 
Or, failing in these, which may be his misfortune, does he, in plain, homely 
words of truth and soberness, endeavor to instruct the men and youth before 
him in their duty to obey the laws and to reverence their rulers, and to prize 
their institutions of government ? Although he may have been mistaken in the 
aptness of the occasion for such didactic instruction, still good teaching is never 
throw r n away. He shows, however, by his language, as he had shown at Cleve- 
land, that he meant to adapt himself to the occasion. He has hardly opened 
his mouth, as we shall show you, when some one in the crowd cries, •• How 
about our British subjects?" 

The Chief Executive, supported by his Secretary of State, so that all the 
foreign relations and diplomatic service were fully represented, with a dignity 
that not even his counsel can appreciate, and with an amenity which must 
have delighted Downing street, answers : " We will attend to John Bull after 
awhile, so far as that is concerned." The mob, ungrateful, receive this bit of 
"expression of opinion upon the justice, worthiness, objects, purposes, and public 
and political motives and tendencies" of our relations with the kingdom of Great 
Britain, as they fell from the honored lips of the PreBidenl of the United States 
with laughter, and the more unthinking with cheers. 

Having thus disposed of our diplomatic relations with the first naval and com- 
mercial nation on earth, the President next proceeds to -'express his opinion in 
manner aforesaid andfor the purposes aforesaid." to this noisy mob on the subject of 
the riots upon wdiich his answer says, " it is the constitutional duty of the Presi- 
dent to express opinions for the purposes aforesaid." A voice calls out "New 
Orleans! go on!" After a graceful exordium the President expresses his high 
opinion that a massacre, wherein his pardoned and unpardoned rebel associate- and 
friends deliberately shotdown and murdered unarmed Union men without provoca- 
tion, even Horton, the minister of the living God, as his hands ware raised to 
the Prince of Peace, praying in the language of the great martyr, •• Father 
forgive them for they know not what they do," was the result of the laws 
passed by the legislative department of your government in the words following, 
that is to say : 

"If you will take up the riot at New Orleans and trace i! baric to its source, or to its 
immediate cause, you will find out who was responsible for the blood that was shed th< 
"If you take up the riot at New Orleans and trace it back to the radical Congress" — 

This, as we might expect, was received by the mob, composed, doubt!' 
3 R 



34 

pari of unrepentanl rebels, with great cheering and cries of" bully." It 
was " bully," if thai means encouraging fop them to learn on the authority of 
the President of the United States thai they mighl Bhool down Union men and 
patriots, and lay the sin ol murder upou the Congress of the United States; 
and this was another bit of "opinion" which the counsel Bay it was the high 
duty of the President to express upon the justice, the worthim ss, obji cts, " pur- 
poses and public and political motives, and tendencies of the legislation of your 
Congress." 

After some further debate with the mob some one, it seems, had called out 
toi ! '" The President of the United States, on this lining, constitutional 
occasion, immediately took this as personal, and replies to it, " Now, my country- 
men, it is very easy to indulge in epithets, it is very easy to call a man Judas, 
and cry oul traitor, bul when he is called upou to give arguments and facts he 
is very often found wanting." 

What were the " tacts that were found wanting," which in the mind of the 
President prevented him from being a Judas Lscariot ? He shall state the 
"wanting tacts in his own language en this occasion when he is exercising his 
high constitutional prerogative." 

"Jtldae [scariot! .Judas! There was a Judas once, one <>; the twelve apostles. Oh! 

yes, the twelve apostles had a Christ. [A voice, 'and a Moses, too;' great laughter.] 

twelve apostles had a Christ, and he never could have had a Judas unless he had had 

the twelve apostles. It' I have played the Judas, who has been my Christ that 1 have 

ed the Judas with? Was it Thad. Stevens! Was it Wendell Phillips? Was it 

Charles Sumner '" 

If it were not that the blasphemy shocks us we should gather from all this 
that it dwelt in the mind of the President of the United States that the only 
reason why he was not a Judas was that he had not been able to find a Christ 
toward whom to play the Jniias. 

It will appear that this hit of " opinion," given in pursuance of his consti- 
tutional obligation, was received with cheers am! hisses. Whether the ch 
were that certain patriotic persons named by 1dm mighl he hanged, or the hiss- 
use of tin- inability of the Presidentto play tin- pari of Judas, for 
reason before stated, 1 am Borry to say the evidence will not inform us. 
His answer makes the President say that it is his "duty to es inionc 

■ the public characters, and the conduct, views, purposes, obji 
and tendencies of all men engaged in the public 
Now. -.,- •• the character, motives, tendencief . ] urposes, objects, and \ iews "' of 
Judas alone had "opinions expressed" about them on tin.- "fit occasion," 
although he set nn d to desire to have some others, W hose nanus he mentioned, 
hanged.) I shall leave his coiin.-el to infoi DO you w hat w ere t ho - public service- " 
of Jnda. [scariot, to say nothing of Moses, which it was the constitutional duty 
and right of the President of the United State- to discuss on this particularly 
•• lit occasion." 

But 1 will not pursue this revolting exhibition any further. 

1 only show you at Cleveland the crowd am! the Presidenl of the United 
in the darkness of night, bandying epithets with each other, crying, 
■•.Mind your dignity, Andy;" "Don't gel mad, Andy;" "Bully for you 
Andy." I hardly dare Bhock, as 1 must, every Bense ol propriety by calling 
youi attention to the President's allusion to the death of the sainted martyr, 
Lincoln, as the nn an.- by which be attained his office, and it it can be justified 
in any man. public or private, I am entirely mistakeu in the commonest propri- 
eties of life. The Pr< ident shall tell his own story : 

a ticket before yon for the presidency. 1 was placed upon 

that ticket wnli a distinguished citizen now no more. [Voices, 'Itaapitj ;' 'Too bad;' 

•| Dfortunato/I Ves, I know there are sunn- who saj 'unfortunate.' Jfes, unfortunate 

I thai God rules on high and deals injustice. [Cheers | Jfes, unfortunate. The 



35 

ways of Providence aw mysterious and incomprehensible, controlling all tin 

• unfortunate.' " 

Is ii wonderful at all that sue* a Bpeecb, which Beems to have been nnpro- 
voked .inil coolly uttered, Bbould have elicited the Biugle n the 

crowd, •• Bully for you 

I go no further. I might follow this ad nauseam. I granl the Presi- 
dent of the United States further upon this disgraceful Bcene the mercy 
of my silence. Tell me now, who can read the accounts of this exhibition, and 
reflect that the result of our institutions of government has been to place 
sued a man, so lost to decency and propriety of conduct, so unfit, in the high 
office of ruler of this nation, without blushing and hanging his head in sham 
the finger of scorn and contempt for republican democracy is pointed al him hy 
some advocate of monarchy in the old world. What answer have you when an 
intelligent foreigner says, Look! see! this is the culmination of the ballot unre- 
strained in the hands of a free people, in a country where any man may aspiri 
to the office of President. Is not, our government of a hereditary king or empe- 
ror a better one, where at least our sovereign is born a gentleman, than to have 
such a thing as this for a ruler? 

Yes, we have an answer. We can say this man was not the choice of the 
people for the President of the United States. He was thrown to the Burface 
by the whirlpool of civil war, and carelessly, we grant, electe 1 to the second 
place in the government, without thought that he might ever fill the first. 

By murder most foul he succeeded to the Presidency, and is the elect of an 
assassin to that high office, and not of the people. " It was a grievous fault, 
and grievously have we answered it;" but let me tell you, oh, advocate 
of monarchy ! that our frame of government gives us a remedy for such a mis- 
fortune, which yours, with its divine right of kings, does not. We can remove 
him — as we are about to do — from the office he has disgraced by the sure, safe, 
and constitutional method of impeachment; while your king, if he becomes a 
buffoon, or a jester, or a tyrant, can only be displaced through revolution, blood- 
shed, and civil war. 

This — this, oh, monarchist ! — is the crowning glory of our institutions, because 
of which, if for no other reason, our form of government claims precedence over 
all other governments of the earth. 

Article 11 charges that the President, having deified in a public speech 
on the 18th of August, 1SGG, at Washington, that the 39th Congress was author- 
ized to exercise legislative power, and denying that the legislation of said Con- 
gress was valid or obligatory upon him, or that it had power to propose certain 
amendments to the Constitution, did attempt to prevent the execution of the 
act entitled " An act regulating the tenure of certain civil offices," by unlawfully 
attempting to devise means hy which to prevent Mr. Stanton from resuming the 
functions of the office of Secretary of the Department of War, notwithstanding 
the refusal of the Senate to concur in his suspension, and that he also contrived 
means to prevent the execution of an act of March 2, 1867, which provides 
that all military orders shall be issued through the General of the army oi 
United States, and also another act of the same 2d of March, commonly known 
as the reconstruction act. 

To sustain this charge, proof will he given of his denial of the authority of ( !on- 
gress as charged; also his letter to the General of the army, in which he admits 
that heendeavored to prevail onhim by promises of pardon and indemnity to disc 
the requirements of the tenure-of-office act, and to hold the office of Secretary of 
War against .Mr. Stanton after he had been reinstated by the Senate; that he 
chided the General for not acceding to his request, and declared that had he 
known that he (Grant) would not hive acceded to his wishes he would have 
taken other means to prevent Mr. Stanton from resuming his office; his admis- 
sion in his answer that his purpose was from the fin ' : "ii of Mr. <- mton, 



3G 

.-; !■.'. 1867, to oust him from hi itwithstanding the decision of the 

- ,:, under the act; hia order to General Granl to refuse to recognize any 
order of Mr. Stanton purporting to come from himself after be was so reinstated, 
and his 01 ler i" General Thomas .-is an officer of the army of the United States 
to take possession of the War Office, not transmitted as it should have been 
through the General of the army, and the declarations of (ieneral Thomas that, 
as an offia i of the army of the United States, he felt bonnd to obey the orders 
of the < Jomraauder-in-chief. 

To prove further the p md intent with which his declarations were 

made, and ins denial of the power of I iongress to propose amendments to the Con- 
I ion, and as one of the means employed by him to prevent the execution of the 
acts of I - we shall show he has opposed and hindered the pacification of 

the country and the return of the insurrectionary States to the Union, and has 
advised the legislature of the State of Alabama not to adopt the constitutional 
amendment known ae the ] 4th article, when appealed to to know if it was hest 
for the legislature so to do; and this, too, after that amendmenl had heen 
adopt-,; by a majority of the loyal State legislatures, and after, in the election 
of L866, il had been sustained by an overwhelming majority of the loyal people 
: States. I do not propose to comment further on this article. 

because, if the Senate Bhall have decided that all the acts charged in the pre- 
ceding articles are justified by law, then so large a part of the inti nt and pur- 
poses with which the respondent is charged in this article would fail of proof, 
that it would be difficult to say whether he might not, with equal impunity, vio- 
late the laws known as the reconstruction acts, which, in his message, he 
declares "as plainly unconstitutional as any that can be imagined." If that 
be sn, why should he not violate them ! If, therefore, the judgment of the 
sustain us upon the other articles, we shall take judgment upon 
this by confession, as the re leclafces in the same message that he does 

xecute them. 
To the bar of this Digh Tribunal, in vested with all its great powei and duties, the 
Efou Et< piesentativea has brought the President of the United States by 

the i in form cm accus ttion, charging him with high crimes and misde- 

ineaie re in office, a? sit forth iii the s vera! articles which I have thus feebly 
. to your attention. Xow.it seem, necessary that I should briefly 
touch upon and bring freshly to your remembrance the history of some of the* 
: • of his admin - lirs in his high office, in order that the intents 

with which and the purposes for which the i 
against him may be fully understi 

I a of the articles of impeachment, the question might have 

aris< mind of nator, why are these acts of the President only 

; by the House when history informs us thai others equally dangerous 
to the liberties of the people, if ao, and othi rs of equal usurpation of 

i ■ .mi r, are passed by in silence J 
To uch possible inquiry we reply: That the acts Bel out in the first eight 
article, are but the culmination of a series of wrongs, malfeasances and usurpa- 
tions committed b; ■' n pondent, and therefore need to be examined in the 
light of bie precedent and concomitant a pe and design, 

last three articles presi nted Bhow the pen i rsity and malignity with which 
he acted, so thai tb< man a he i known to us may be clearly spread upon 
known of all m ter. 

'• as been thi n pondi nt' course of admi Foi the evidence 

we rely upon common lame and currenl ufficienl proof. By the 

law, common fame, "si oriatur <i/>inl bonos et graves," was ground of 
indictmenl evi o; m ire than 240 y< • termined in Parliament "that 

comi : ■ the proceeding of this house, either to 



37 

inquire of lure or to transmit the complaint, if the bouse 6nd cause, to the 
King or Lords." 
Now, is it not w«ll known to all good and grave men (''bono* et grave*") 

that Andrew Johnson entered the nfticoof President id the United State! at the 

close of the aimed rebellion, making loud denunciation, frequently and evi ry- 

where, that traitors ought to he punished, and treason should be made odioUfl : 
that the loyal and true men of the South should be fostered and encouraged ; 
and, if there were but few of them, to such only should be givi d iii charge the 
reconstruction of the disorganized States 1 

Do not all men know that soon afterwards he changed his course, and only 
made treason odious, so far as he was concerned, by appointing traitors to 
and by an indiscriminate pardon of all who "came in unto him .'" Who does 
not know that Andrew Johnson initiated, of his own will, a course of recon- 
struction of the rehel States, which at the time he claimed was provisional only, 
and until the meeting of Congress and its action thereon '. Who does not know 
that when Congress met and undertook to legislate upon the very subject oi 
reconstruction, of which he had advised them in his message, which they alone 
had the constitutional power to do, Andrew Johnson last aforesaid again changed 
his course, and declared that Congress had no power to legislate npon that sub- 
ject; that the two houses had only the power separately to judge of the quali- 
fications of the members who might be sent to each by rebellious constitu- 
encies, acting under State organizations which Andrew Johnson had called into 
existence by his latejfa^, the electors of which were voting by bis pennies! 
and under his limitations ? Who does not know that when Congress, assuming 
its rightful power to propose amendments to the Constitution, had passed Buch 
an amendment, and had submitted it to the States as a measure of* pacification, 
Andrew Johnson advised and counselled the legislatures of the States lat. ly in 
rebellion, as well as others, to reject the amendment, so that it might not operate 
as a law, and thus establish equality of suffrage in all the States, and equality of 
right in the members of the electoral college, and in the number of the n pre- 
sentations to the Congress of the United States? 

Lest any one should doubt the correctness of this piece of history or the truth 
of this common fame, we shall .--how you that while the legislature of Alabama 
was deliberating upon the reconsideration of the vote whereby it had rejected 
the constitutional amendment, the fact being brought to the knowledge 
Andrew Johnson and his advice asked, he, by a telegraphic under his 

own hand, here to be produced, to show his intent and purposes, advised the 
legislature against passing the ami ndment, and to remain firm in their opposition 
to Congress. We shall show like advice of, Andrew Johnson upon i !;>■ same 
subject to the legislature of South Carolina, and this, too, in the winter"!' L867, 
after the action of Congress in proposing the constitutional amendmi nt had 
been sustained in the previous election by an overwhelming majority. Thus 
we charge that Andrew Johnson, President of the United States, no1 only 
endeavors to thwart the constitutional action of Congress and bring it to 
naught, but also to hinder and oppose the execution oi the will of the loyal 
people of the United States expressed in the only mode by which it 
can be done, through the ballot-box, in the election of tlnir representatives 
Who does not know that from the hour he began these, his usurpations 
power, he everywhere denounced Congress, the legality and constitutionality of 
its action, and defied its legitimate powers, and, for that purpose, announced his 
intentions and carried out bis purpose, as far as he was aide, of removing every 
true man from office who sustained the Congress of the United Stati B I And it 
is to carry out this plan of action that he claims the unlimited power of removal, 
for the illegal exercise of which he stands before you this day. Who i\"^< not 
know that, in pursuance of the same plan, he used his veto power indiscrimi- 
nately to prevent the passage of wholesome laws, enacted foi the pacification of 



38 

the country ? and, when laws were passed by the constitutional majority over 

his vetoes, In' made the most determined opposition, both open and covert, to 
them, and, for the purpose of making that opposition effectual, he endeavored to 
array and did array all the people lately in rebellion to set themselves against 
Congress and against the true and loyal men, their neighbors, so that murders, 
assassinations) and miss acres were rife all over the southern States, which he 
encouraged by his refusal to consent that a single, murderer be punished, though 
thousands of good men have been slain ; and further, that he attempted by military 
orders to prevent the execution of acts of Congress by the military command- 
ers who were charged therewith. These and his concurrent acts show conclu- 
Bively that his attempt to get the control of the military force of the government, 
by the seizing of the Department of War. was done in pursuance of his general 
design, if it were possible, to overthrow the Congress of the United States ; and 
he now claims by his answer the right to control at his own will, for the execu- 
tion of this very design, every officer of the army, navy, civil, and diplomatic 
service of the United States. He asks you here, Senators, by your solemn 
adjudication to confirm him in that right, to invest him with that power, to be 
nsed with the intents and for the purposes which he has already shown. 

rhe responsibility is with you ; the safeguards of the Constitution against 
usurpation are in your hands ; the interests and hopes of free institutions wait 
upon your verdict. The House of Representatives has done its duty. We 
have presented the facts in the constitutional manner ; we have brought the 
criminal to your bar, and demand judgment at your hands for his so great crimes. 

Never again, if Andrew Johnson go quit and free this day, can the people of 
this or any other country by constitutional checks or guards stay the usurpa- 
tions of executive power. 

I speak, therefore, not the language of exaggeration, bat the words of truth 
and soberness, that the future political welfare and liberties of all men hang 
trembliu£ on the decision of the hour. 







